[New search]
[Context
]
[View without highlighting]
[Printable PDF version]
[Buy ICLR report: [2019] 4 WLR 91]
[View ICLR summary: [2019] WLR(D) 336]
[Help]
|
|
Neutral Citation Number: [ 2019] EWCA Crim 1002 |
|
|
Case Nos: 2018 04425/4476/4479/4463 C3 |
IN THE COURT OF APPEAL (
CRIMINAL
DIVISION)
ON APPEAL FROM THE CROWN COURT AT OXFORD
HH Judge Pringle QC
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
13/06/ 2019 |
B e f o
r
e :
LORD JUSTICE SIMON
MR JUSTICE JAY
and
HH JUDGE PICTON
(sitting as a judge of the Court of Appeal)
____________________
Between:
____________________
Mr Michael Borrelli QC and Ms Fiona
Robertson
(instructed by Hallinan Blackburn Gittings & Nott LLP) for the appellants
Mr Stuart Trimmer QC and Mr Michael
Roques
for the prosecution
____________________
HTML
VERSION
OF JUDGMENT APPROVED
____________________
Crown Copyright ©
Lord Justice Simon:
Introduction
- This case
raises
some of the issues that may arise when the jury separates during the course of deliberating on their
verdicts
to allow jurors to take pre-booked holidays.
- On 2 October 2018 in the Crown Court at Oxford (HHJ Pringle QC) the appellants were convicted of murder (count 1) and were subsequently sentenced to terms of life imprisonment.
- One co-defendant, Yousef Koudoua, was acquitted of murder; and another co-defendant, Yasine
Lamzini
was convicted of manslaughter as an alternative to count 1. In addition to those charged with murder, two co-defendants, Alfie Sims and Saffon Fakir were convicted of conspiracy to pervert the course of justice (count 2); and two other co-defendants, Yamina and Allal
Lamzini,
were convicted of perverting the course of justice (count 3).
- This appeal only concerns the four appellants: Conner
Woodward,
Carlos
Spencer,
Otman
Lamzini
and
Rashaun
Stoute,
who appeal against their conviction with the limited leave of the single judge.
A summary of the case
- During the evening of 1 June 2017, Christopher Lemonius was assaulted by a group of men, some armed with weapons, in an alleyway in the Blackbird Leys area of Oxford. As a
result
of this attack the
victim
suffered multiple injuries from which he died.
- The prosecution case was that the four appellants were part of this group; that they had either actively participated in or encouraged the attack; and that Sims, Fakir, Yamina
Lamzini
and Allal
Lamzini
(who were Otman and Yasine
Lamzini's
parents) had played a part in hiding the truth of what had happened that evening from the police.
- The prosecution suggested that a possible motive for the attack had been an earlier incident in which Yasine
Lamzini
was stabbed. It was suspected that Kofi John Welch, an associate of Christopher Lemonus who was with him on the night of the murder, may have committed the stabbing.
- The two groups had been in Blackbird Leys Park shortly before 11 pm where they had engaged in a
violent
confrontation. The altercation spilled out into Cuddesdon Way, and Christopher Lemonius had become separated from his group. He had
retreated
into an alleyway that
ran
along the back of Jourdain
Road.
No.2 Jourdain
Road
was the home of the
Lamzini
family, and he had
run
into their garden and then into the back of their house. From there he had been dragged and attacked by a number of men.
- The prosecution case was each of the appellants had played an active part in the fatal assault.
Woodward
had been armed with a pole,
Spencer
with a piece of wood and
Stoute
with a machete. Otman
Lamzini
had punched, kicked and stamped on Christopher Lemonius, and had not, as he alleged, been acting in self-defence.
- The prosecution
relied
on a number of pieces of evidence. First, cell-site evidence in
relation
to the appellants' movements. Second, closed-circuit television (CCTV) footage and evidence from a police officer who identified the appellants and their movements in the
relevant
areas at the material times. Third, evidence from eyewitnesses in
relation
to the early part of the incident (the confrontation in and around Blackbird Leys Park). Fourth, evidence from eyewitnesses in
relation
to the attack on the deceased. Fifth, DNA evidence implicating each of the appellants in the fatal attack: a golf club discarded in Watlington
Road
which contained the deceased's blood and further pieces of a golf club found in the alleyway which also contained the deceased's blood; a hat found inside the
Lamzinis'
property which contained
Stoute's
DNA; a piece of wood found in the alleyway which contained the blood of both the deceased and Otman
Lamzini;
the top end of a golf club found in the alleyway which contained the DNA of both the deceased and
Spencer;
gloves found in the back garden of the
Lamzinis'
property which contained the blood of the deceased and DNA of the brothers Otman and/or Yasine
Lamzini;
fingerprints on the outside of the kitchen door of the
Lamzinis'
property which were a match for
Woodward.
Sixth, evidence that none of the clothing worn by the appellants that night nor any of their mobile telephones were
recovered.
The prosecution invited the inference that these items had been discarded as part of an active plan to pervert the course of justice. Seventh, the failure of Otman
Lamzini
to mention
relevant
facts in his police interview. Eighth, the inferences to be drawn from the failure of each of
Woodward,
Spencer
and
Stoute
to give evidence in their defence at trial.
- The key prosecution witness was Julie O'Dong. She gave evidence that on the night of the incident she was at home in her living
room
when she heard shouting. She locked the back door and went upstairs to her mother's
room.
From there she was able to see the alleyway and the back garden of the
Lamzinis'
property at 2 Jourdain
Road.
She could see about 6 people in the back garden and alleyway. She knew four of them: Otman and Yasine
Lamzini,
Connor
Woodward
and a man she knew as 'Carlos' (
Spencer).
Some of them wore hooded clothes and some were carrying metal poles, a golf club and a piece of wood. The group were shouting out and asking where Kofi was.
- She heard a noise coming from the garden and briefly from inside the
Lamzinis'
property. Someone shouted, 'drag him out'. She saw the
victim
being dragged out into the garden, where he was beaten by the people she had named and the others.
- She estimated that the entire confrontation lasted 20 to 30 minutes. She heard someone say, 'finish him, we'
re
going to dead him outside.' She had initially thought that
Spencer
had said this, but it may have been Otman
Lamzini.
She also heard someone say, 'what are you gonna do now? You'
re
not a big man anymore for stabbing Yazza.' She said that Otman
Lamzini
and
Woodward
were the most
vocal
during the incident.
- Her evidence was that
Woodward
held a pole and used it continuously on the deceased's head and legs; and that
Spencer
was angry. The deceased was dragged into the alley; and someone shouted, 'we'
re
going to dead him' and 'let's take him to the field and finish him off there.'
Woodward
and Otman
Lamzini
seemed to agree with this. She saw Otman
Lamzini
and
Woodward
stamp on the deceased and kick him. She did not see Otman
Lamzini
carrying a weapon; but she saw
Spencer
carrying a piece of wood and hitting the deceased. The hooded individuals appeared to be male. One of them had a golf club which he used on the deceased. Another appeared to be interacting with
Spencer,
and at times trying to calm him down.
- In cross examination, Julie O'Dong was challenged in
relation
to her identifications, apart from that of Otman
Lamzini.
He accepted that he had been there. The witness maintained that
Spencer
had not only been present during the attack but had actively participated in it. She accepted that the incident was totally unexpected and that she had not contacted the police until two days later, on 3 June. She had lived next door to Otman
Lamzini
for some time and she would
recognise
his
voice
as well as his physical appearance. She did not accept that he tried to intervene and stop the attack.
- She described the clothing that the hooded men were wearing and confirmed that one had a golf club and another assaulted the deceased by punching him. She knew
Woodward
quite well. They were friends. She denied that she was seeking attention by giving her evidence. She had heard
rumours
about the incident; but maintained that her evidence was simply what she had witnessed on the evening in question.
- The first and second items of prosecution evidence (cell-site analysis and CCTV
recordings)
was summarised in a detailed 79-page 'chronology' giving details of dates and times. Where the event
related
to a CCTV image there were details of the camera location, a description of the image and a copy of a small still image. In the case of cell-site analysis there were details of the call type, duration, the calling number and the number called, the area covered and a description of the call. Thus, for example, item 278, a call at 01.14 on 2 June 2017, lasting 2 minutes and 11 seconds from
Spencer
to
Stoute,
with broad indication of the cell coverage.
- The defence of the appellants differed. Otman
Lamzini
accepted that he was present; but said that he was acting in defence of his brother, Yasine
Lamzini.
The others denied that they were present or had taken part in any assault.
Spencer
did not give evidence but
relied
upon the account given in police interviews in which he answered questions and gave a detailed account of his movements. His case was that he was not in the immediate
vicinity
and had played no part in the attack on the deceased. He had held a piece of wood at some stage that evening but had discarded it.
Stoute
did not give evidence in his defence. His case was that, despite the evidence in
relation
to his hat and the CCTV images which were said to show him close to the
vicinity
of the alley at the
relevant
time, he had not been identified as one of the males taking part in the attack on the deceased.
- In his evidence to the jury, Otman
Lamzini
accepted that he had punched and kicked the deceased a few times but said that he had acted only to defend his brother. He gave evidence in
relation
to his personal circumstances and his
relationship
with each of the co-defendants. He described his movements that evening and how the incident had unfolded.
Woodward
did not give evidence but
relied
upon the account given in his police interviews. He denied that he had participated in any attack on the deceased; and a number of points were made in
relation
to the
reliability
of Julie O'Dong's evidence.
- In the cases of
Spencer,
Stoute
and
Woodward,
the issues for the jury were whether they were sure that each had participated in the attack on the deceased, and if so whether they had intended that at least
really
serious harm would be caused to him. In the case of Otman
Lamzini,
the issues for the jury were whether he had been acting in lawful self-defence of himself or his brother, and whether he had intended that either
really
serious harm or some harm would be caused to him.
The progress of the trial
- The trial began on 2 May 2018, with an 8-10 week estimate, with the jury in waiting being told that it would conclude by mid-July. They were selected on the basis that they would be able to sit for a trial of this length and did not have pre-booked holidays during this period. A helpful schedule prepared by Ms
Robertson
shows how the trial became delayed. Some of the delays were unavoidable: for example,
relatively
minor issues with the jury and witnesses. Some of the delays were of the type that can occur in any trial due to what is a dynamic process: for example, making arrangements for a site
visit
and non-systemic issues with technical equipment, as well as the illness or incapacity of crucial participants in the trial. However, many other delays were plainly avoidable or capable of being ameliorated. In the former category were the frequent delays to the trial because the defendants were delivered late from the prisons where they were being held on
remand.
In the latter category, was other work that the Judge had to undertake as the
Resident
Judge.
- The importance of starting each day on time is particularly
relevant
in the present case; but it applies to every case in the Crown Court. We would add that, where trial counsel has a commitment in an appeal to the Court of Appeal in another case, it should be possible to accommodate the hearing so as to cause the minimum disruption to a trial.
- The many delays in the present case had a knock-on effect; and the number of days on which the court did not sit at all during the trial is both striking and unsatisfactory.
- The prosecution closed its case on Friday 6 July. The jury then heard the cases for the defendants, including the appellants, in the week of 9 to 13 July. On Monday 16 July, the parties made submissions on the legal directions that the Judge would give. The court did not sit on 17 July and the prosecution closing speech was concluded on 19 July. There was then a 3-day period from Monday 23 to Thursday 26 July when the court could not sit due to the illness of leading counsel for one of the defendants.
- By this stage it was clear to all concerned that the case would overrun into a period when some of the jurors had pre-booked holidays.
- On 26 July, the Judge
raised
a suggestion that the trial should be adjourned so as to accommodate the three jurors who had pre-booked holidays. For most of the trial there had been 11 jurors, due to an accident suffered by one of them early in the trial. The Judge indicated that, with his summing up likely to begin on 1 August (Wednesday), the jury would probably
retire
on the following Monday (6 August) and continue their deliberations on 7, 8 and 9 August.
- On 30 July, there were specific discussions between the Judge and counsel about a break in the jury deliberations and a
resumption
on 29 August.
- On 2 August, an application was made to discharge the jury before the case was summed up on the basis that the jury would be unlikely to
reach
verdicts
before the 3-week holiday period began. The Judge
refused
this application. It is unnecessary to dwell further on the application, since the
refusal
of the application is not the subject of any ground of appeal. We would add, however, that the Judge was fully entitled to the
view
he took. An alternative argument was also advanced that the Judge should defer his summing up until the jury had
returned
at the end of August, which the Judge also
rejected.
Again, no proper criticism of that decision can be made.
- He began his summing up on Thursday 2 August and concluded on Monday 6 August. The jury was given a written copy of his directions on the law and a written document providing
routes
to
verdicts
in
relation
to each of the ten defendants. In addition, they had copies of the 79-page 'chronology', a document headed 's.10 Admissions'
running
to 137 paragraphs, and transcripts of the interviews with
Spencer
and
Woodward.
- The jury
retired
to consider their
verdicts
at 13.14 on 6 August. Before asking them to
retire,
the Judge told them that they should not feel under any time pressure; that they would stop their deliberations on 8 August for the pre-booked holidays; and that they would
return
to court and
resume
their deliberations on 29 August.
- The jury considered the
verdicts
for the
rest
of 6 August, as well as 7 and 8 August. On 8 August, the jury asked for some of the CCTV images to be played to them.
The first break in deliberations
- On 8 August the Judge told the jury to stop their deliberations and directed them not to talk about the case when they were away from court, during what he described as 'a welcome break.' Following the departure of the jury on 8 August, he discussed with counsel what directions should be given to them when they
returned
at the end of August. He invited the parties to prepare short summaries of the prosecution and defence cases so that he could
remind
the jury of the salient points when they
returned.
- Between 8 and 29 August, attempts were made to produce these written summaries. This proved difficult. The defendants objected, with some justification, that the first
version
of the prosecution summary was not a summary of the prosecution speech to the jury, but
rather
a document which addressed points which had been made by counsel in their closing speeches for the defence. Those
representing
Yasine
Lamzini,
Yousef Koudoua and Saffon Fakir
raised
specific points of objection to the prosecution document; and it was
replaced
by a more appropriate summary based on Mr Trimmer QC's closing speech. Each of the ten defendants produced their own summaries. However, there was no uniformity of approach: some were in bullet-point form, others more in the nature of a narrative summary, some short, some long. There were, in the words of Mr Borrelli QC, 'stylistic differences.' In the event, it was agreed by most, if not all, counsel that the documents could not be used to
remind
the jury of the salient points
raised
by prosecution and defence; and that there was insufficient time for the Judge to prepare his own summary. As Mr Borrelli put it in argument before us, 'the ten different summaries would have likely served more to confuse than assist the jury.' In any event, nothing further was said about the facts when the jury
returned.
We will
return
to this matter later in the judgment.
- Mr Borrelli made detailed suggestions as to what the Judge should say to the jury which included telling them that, if they found if they were unable to
reach
true
verdicts,
due to the break in their deliberations, they should say so.
- The Judge sensibly followed this course to this extent:
Now you have written directions on the law which I gave to you, and you have
route
to
verdicts,
and you no doubt will
remind
yourself of those when you start your deliberations today. But you also, in this case, members of the jury, have a huge amount of material: you'
ve
got 149 paragraphs of agreed facts,
remind
yourself briefly of those when you
retire.
You'
ve
got a lot of schedules, you'
ve
got a lot of photographs, you'
ve
got a lot of material which you'll need to just
re-familiarize
yourself with when you
retire.
You'
ve
also got notes, which I know some of you made during the course of the evidence, you'
ve
got notes I know that some of you made during the course of counsel's speeches, so take some time just to
remind
yourself of the contents of those notes. We, of course, trust that having
reminded
yourself of all of that, you will
recall
the evidence and continue to try to
reach
verdicts
upon which you are all agreed. If you need
reminding
of any of the evidence in this case, don't hesitate to send a note and I will
remind
you of the evidence that was given during the course of the trial.
- He also
reminded
the jury again that they should not feel under any pressure of time to
reach
verdicts.
- When they
retired
again on Wednesday 29 August, it was envisaged that they would sit for a further five or six days. In the event the court did not sit on 30 August so as to allow a juror to attend an important wedding. The jury continued their deliberations on Friday 31 August and on Monday 3 September, when a jury note was discussed. The note asked the Judge for
reassurance
that they would not
return
to court until Tuesday 25 September, 'i.e. we are not in court 6-24 September inclusive.' The jury's concern arose from a second tranche of pre-booked holidays. Mr Borrelli on behalf of the defendants, having
referred
to his earlier submission that the jury should have been discharged before the first break, submitted that a further adjournment made 'the situation even more untenable', and applied again for the Judge to discharge the jury. This application was
refused,
with the Judge noting that the jury clearly did not envisage any difficulty in coming back after a further adjournment, 'which is an interesting insight into their … thinking.'
- When the jury
returned
to court, the Judge told them that they would not be
required
to sit on the case from 6 to 24 September, and that they could
return
on 25 September if they needed further time.
- The jury continued their deliberations on 3, 4 and 5 September. At the close of the court day on Wednesday 5 September, the Judge told the jury to cease their deliberations and
return
to court on Tuesday 25 September. He also
repeated
the warnings he had given before about not discussing or carrying out any
researches
into the case.
The second break in the jury deliberations
- In fact, the jury were not able immediately to
resume
their deliberations on 25 September. They did not do so on 25 and 26 September due to one of the jurors being unwell. On 27 September, the jury
retired
again to consider their
verdicts.
Unlike previously, the Judge did not mention the written material that was available to them in
retirement
or that, if they needed to be
reminded
of any evidence in the case, they could send him a note and he would
remind
them of it.
- The jury continued deliberating on Friday 28 September and Monday 1 October, when at the close of the court day the Judge
received
a note about
verdicts.
- On Tuesday 2 October, the Jury
returned
their
verdicts
as we have set out above.
The arguments
- Although Mr Borrelli made no criticisms of the directions of law or the summing up, he submitted that, by the time the
verdicts
were
returned
against the appellants, 8 weeks had passed since the conclusion of the summing-up and over 11 weeks since the evidence had concluded. He
reminded
the Court of the overriding objective in CPR Part 1.1 (1)(e) of dealing with cases efficiently and expeditiously. He argued that the Judge should have discharged the jury from
reaching
verdicts
no later than 5 September. The trial process had become wholly disjointed by delays which had
resulted
in the jury separating for periods of 20 and 22 days during
retirement,
without any sufficient
reminder
of the evidence. The primary witness against the appellants, and the only witness to identify them at the scene and as being specifically involved in the assault, was Julie O'Dong. Her evidence had concluded some 2½ months before the jury
retired
and nearly 4½ months before their
verdicts
were
returned.
The delays inevitably
reduced
the jury's ability to
retain
the evidence and the points made in
relation
to it on the appellants' behalf. The period was also too long for the court to be able to exercise any form of judicial control over the most important period of the jury's function. The interruptions to their deliberations fundamentally undermined their quality; and the substantial
risk
of lapses in
recollection
could not be cured by documents, such as might be possible in other cases. The protracted jury deliberations were incompatible with a fair trial process and
rendered
the convictions unsafe.
- In support of these submissions he
referred
to a number of cases to which we
refer
further below: People
v.
Santamaria (1991) 229 Cal App 3d 272;
R
v.
Kellard, Dwyer and Wright [1995] 2 Cr App
R.
134;
R
v.
Rember
and
Richards
[2004] and
R
v.
A, Heppenstall and Potter [2007]
EWCA
Crim
2485.
- For the Crown, Mr Trimmer, accepted that the progress of the trial was slow and that there had been two lengthy breaks during the jury's deliberations; but he submitted that the prior delays were not as extreme as in the case of
R
v.
Heppenstall. There was no criticism of the Judge's summing up; and his decision not to discharge the jury was in accordance with the overriding objective in the
Criminal
Procedure
Rules.
Further, the jury were
rightly
directed that there was no pressure of time to come to a decision. Much of the evidence was agreed in the form of s.10 admissions, and the jury were able to consider this evidence and the chronology, as well as the written directions, during their deliberations. The live evidence was correctly summed up by the Judge and the jury were directed that they could be
reminded
of the evidence if they so wished. The jury sent
various
notes during the course of their deliberations, none of which indicated that they were struggling to
recollect
the evidence. While he accepted that the delays in the case were far from ideal, they did not have such an adverse effect on the proceedings so as to
render
the convictions unsafe.
Decision and conclusion
- Jury service is a public duty which inevitably involves disruption to the lives of those called to serve. Jurors are entitled to consideration in
relation
to their individual needs (for example, medical or other similar and necessary appointments); and this consideration, within appropriate limits, also extends to the collective needs and comfort of the jury. Thus, when there are delays with periods during which a jury is not in court, judges will try to explain, in so far as they are able, why a jury is kept waiting. It is a necessary courtesy.
- Another feature of the consideration shown to juries arise in
relation
to pre-booked holidays. It is
recognised
that if these have to be cancelled, it is likely to cause loss and expense, quite apart from disappointment and annoyance. If there is a
risk
of a trial continuing over a holiday period, a court will make enquiries to determine whether jurors in waiting have pre-booked holidays. Where possible the jury will be empanelled with these considerations in mind, see for example CPR Part 1.2(d), which deals expressly with the need to
respect
the interests of jurors; see also CPDVI Trial 26D3. However, there will be cases (particularly long cases) where the convenience and even the needs of the jury must cede to the wider interest of trying cases in accordance with the Overriding Objective.
- The applicable
regulations,
whose effect is set out in the Juror Manual at §§27.1-7, provide that a juror can make a claim for the cost of a lost pre-booked holiday, subject to certain conditions. (1) The trial must be over-
running
and the judge must decide that the juror cannot be discharged from the jury. (2) Any claim is limited to the daily financial loss allowance for 10 days. The daily financial loss allowance is currently either £32.47 (4 hours or less per day) or £64.95 (over 4 hours per day). It follows that the maximum claim is £649.50 and may be £324.70. (3) There must be satisfactory evidence of the amount of any lost deposit, including booking and payment confirmation, and the lost deposit must not be the subject of insurance. (4) The cost of
rebooking
holidays and flights will not be
reimbursed.
(5) The
reimbursement
will not extend to losses in
relation
to anyone other than the juror; and not accompanying family or friends.
- The constraints on
reimbursement
of the cost of a cancelled family or accompanied holiday (if such it is) are plain. Nevertheless, it may provide an alternative to letting the jury disperse on the basis of pre-booked holidays
- The Judge was entitled, if not bound, to consider the potential difficulties caused to jurors by the case overrunning; and no complaint is made of his decision to allow a jury a three-week period away from the trial while they were in
retirement,
so as to allow some of them to go on pre-booked holidays.
- The proposal that the jury would be assisted by summaries of the prosecution and defence cases proved to be unworkable. It
required
self-discipline on the part of the prosecution not to deal with points made in the closing defence speeches, and on the part of the defence not to take into account points made in the summing up which were
regarded
as adverse. In the event, the intention to present the Judge with agreed statements of case failed; and by the time this was clear to everyone, the jury were
ready
to
resume
its deliberations. In our
view,
the proposal of summaries which the Judge would
read
out was likely to be problematic. We would add that a judge is entitled to ask for and to
receive
material which will assist him or her in
reminding
the jury of the evidence; but ultimately such guidance to the jury is the
responsibility
of a judge.
- We acknowledge that difficulties may arise when a judge attempts to summarise what has already been summarised in a summing-up. Nevertheless, in some cases it may be necessary to
remind
the jury of the material evidence and the parties' case in
relation
to it.
- In the present case, the jury were assisted by the
route
to
verdict
and the written directions of law, as well as the other documentary material which provided a clear structure within which they could work through their
verdicts.
In addition, it was made clear that if they
required
assistance in
relation
to a particular piece of evidence, they could ask the Judge to
remind
them. In many cases, and in the present case, jurors will have made notes of what they think is the important evidence; but being
reminded
by a judge will ensure that all jurors are in the same position.
- In our
view
the
real
issues on this appeal are: (1) whether the Jury should have been allowed to continue their deliberations on 27 September, after the second break; (ii) what, if any, further assistance should have been given at that point; and (iii) whether the continuation of the trial to
verdicts
rendered
the process unfair, and the
verdicts
unsafe?
- As to (i), although there had been two three-week breaks, the jury had been in
retirement
for 8 days, and there was nothing to indicate that they had difficulty in considering their
verdicts.
The question then is whether there is some over-arching principle which precluded the jury being permitted to continue their deliberations on 27 September. In our
view
there is not. In each case, a judge will have to consider whether the time has come when the case should be withdrawn from a jury. The length of breaks when a jury has not been in
retirement
will be a factor; but it is a fact sensitive question, and trial judges will be in a good position to assess the situation.
- As to (ii), we have already set out our
views
as to the utility of providing a summary of the evidence and the points made on each side. As to Mr Borrelli's submission that the Judge should have
reminded
the jury on 27 September of the written materials which would assist them, as he had on 29 August, we accept that some judges might have followed this course. However, it would have amounted to little more than telling the jury about what they had in the jury
retiring
room,
which of course they would see when they
returned
there. Nevertheless, we consider that it would have been prudent to tell the jury that they could ask him to
remind
them of any points of evidence on which they were unclear.
- As to (iii), the issue here is whether, looking at the matter overall, the six-week period spent away from the case
rendered
the trial unfair and the
verdicts
unsafe.
- The passage to which we were
referred
in the American case of People
v.
Santamaria (above) is a useful common-sense
reminder
of the fallibility of memory after a prolonged interruption in deliberations. However, the case itself concerned an entirely different and much more confined
regime
of jury separation. Section 1121 of the California Penal Code confined the period of 'continuance' to matters of necessity. The California Court of Appeal expressed concern that the jurors would be subject to prolonged exposure to outside influences during the 11 days while their deliberations were suspended. In our
view
the decision does not greatly assist in the present case. Since the introduction of s.13 of the Juries Act 1974, juries can separate after they have
retired
to consider their
verdict.
The current guidance as to what the jury should be told is conveniently set out in Blackstone
2019
at D19.8, by
reference
to Oliver [1996] 2 Cr App
R
514:
(1) The evidence has been completed and it would be wrong for any juror to seek or
receive
further evidence or information of any sort about the case; (2) they should decide the case on the evidence and the arguments seen and heard in court, and not on anything seen or heard outside the court; (3) they should not talk to anyone about the case save to the other members of the jury and then only when they were deliberating in the jury
room;
(4) they should not allow anyone to talk to them about the case unless that person was a juror and he or she was in the jury
room
deliberating about the case; (5) on leaving the court, they should set the case on one side until they
retire
to the jury
room
to continue the process of deliberating about their
verdict.
It is desirable for the direction to be given in full on the first dispersal by the jury, and for a brief
reminder
to be given at each subsequent dispersal. Further directions in
relation
to access to and use of exhibits are addressed by
Crim
PD
VI,
§§ 26L.1 to 26L.3.
- The jury were warned in these terms in the present case at all
relevant
stages.
- In Kellard, Dwyer and Wright (above) the court was concerned with the safety of a conviction following a trial that lasted 252 working days. The appeal did not directly
raise
the period of
retirement;
but two passages in the judgment of this court are
relevant.
- At p.147F, the court observed:
As already noted, the appellants say that the strain imposed on all connected with the trial was intolerable. The main impact would have been on the jury who were of course unused to the pace of court procedure. It is submitted that the jury could not over such a period of time give sufficient concentration to evidence of activities with which they are likely to be unfamiliar. Furthermore, it is said that the jury was likely to be
resentful
of the fact that the length of the trial was so much greater than they had been advised at the outset.
- The court added this passage at p.149A, which has some
resonance
in the context of the present appeal:
The first question to be decided is whether the length of the trial in itself is a sufficient ground for characterising these convictions as unsafe or unsatisfactory. The Court is firmly of the opinion that it is not. If it were otherwise, cases would have to be tried within a time limit.
The correct approach is to consider whether the length of the trial created a situation at any point whereby a fair trial was not possible. Does the case
reveal
any feature which tends to establish that any of those taking part in the trial were by
reason
of its length unable to discharge their function?
The most important of those concerned in the trial was the jury. If it was unable to understand the evidence, or the directions it
received
were not
reliable
or accurate, there would be grounds for saying that the convictions were unsafe. It is evident that the jury itself manifested no such incapacity. One of their number had to be discharged at an early stage but thereafter their attendance at the trial was assiduous. On no single day when the court was sitting over this long period was a jury man or woman ever late. A succession of notes were passed to the court during the course of the trial, some merely checking that the jury had the
right
documents, some asking more weighty questions but demonstrating the jury's close attention. With the exception of one jurywoman who is the subject of criticism on behalf of Kellard in a separate ground of appeal. there was no complaint during this appeal of any shortcomings on the part of the jury, neither was any application made for its discharge on this ground during the course of the trial. There is perhaps a tendency in the legal profession to underrate the capacity of juries in this country. While it is not a feature of this case, it should not be too
readily
assumed that a Jury cannot properly understand a case merely because of its length. Juries might well
resent
such condescension. Certainly during the present case, notwithstanding its length, no complaint was ever made that the jury did not comprehend what was going on, nor did any such admission come from the jury. Furthermore, the jury showed some discrimination in their
verdicts
by acquitting Wright on count nine.
- In
Rember
and
Richards
(above), this court addressed a complaint that the jury was allowed to disperse during its deliberations for 9 days over a Bank Holiday as had been envisaged if the trial were to overrun. The court made a number of general observations:
57. Such a break in the deliberations of a jury is to be avoided if it can possibly be avoided. There are all sorts of dangers which can arise if too long is to pass between a jury dispersing at the end of one day's deliberations and their
reassembling
for their next day of deliberation. For obvious
reasons,
which include the fact that there may be events which occur during that week which may affect the way in which a juror or more than one juror looks at the case which are nothing to do with the evidence, it does not allow for control of a jury which the court must seek to achieve during any period when the jury is considering its
verdicts
and which essentially should only
result
in a jury being dispersed for the shortest periods possible and only if again possible overnight. The period in this case might also have had an effect, as [the appellant's counsel] submits, on the jury's memory of the evidence which they had heard.
- The court considered the effect of the dispersal and concluded that what happened did not
render
the
verdicts
unsafe.
59. … In the light of the evidence which was before the jury and in the absence of anything to suggest that the jury was in any way put in
real
difficulty as a
result
of the fact that they were dispersed for those nine days, we cannot see anything to support the conclusion that the
verdicts
were unsafe.
- In A, Heppenstall and Potter (above), the court had to consider the issues that arose from a trial which had been estimated to last 4 months and had in fact lasted approximately 11 months. There were 235 available sitting days, on which the court had only sat 132 days, and
rarely
a full day. This was due to a combination of factors: for example, sitting Maxwell hours and prolonged breaks for national and juror's holidays. As the court observed at [21], the first break was extended because a juror had booked a holiday over Easter and the judge, in the light of the over-
run,
allowed that juror to take a holiday, 'this was to set a disastrous precedent'.
- At [38] the court gave a warning of general application:
Once the judge had taken the decision that he could not allow one juror a holiday without allowing the jury those holidays which they had booked, in the belief that the trial would be over, disruption was inevitable.
- It is clear that when considering breaks for holidays a trial judge should establish the guiding principles for granting adjournments to allow for jury holidays and should stick to them.
- In A, Heppenstall and Potter, there had been further breaks for jurors' holidays, school half-term, and a juror's business commitments in June (15 days), July (18 days) and July to September (43 days), October to November (17 days).
Relevantly
for present purposes, the jury deliberated for 3 days before a 17-day break and
returned
verdicts
the day after
returning.
- The Court set out principles of general application:
29. The overriding
requirement
of a
criminal
trial is to ensure that the accused is fairly tried. The
rules
of practice are designed to achieve that
result.
(If authority is needed, see e.g., Lord Bingham in
Randall
v
R
[2002] 2 CR.App.
R.17,
267 at page 273 paragraph 1. That is the overriding objective of the
Criminal
Procedure
Rules
(see 1.1 of the
Criminal
Procedure
Rules
2005 S.I.2005 No 384). This court must
remind
itself that its jurisdiction is limited to assessing whether the convictions are safe. Not every departure from good practice will
render
a trial unfair but:
The
right
of a
criminal
defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.' (Lord Bingham at paragraph 28 in
Randall).
- The court added this:
30. It is trite to observe that the fairness of the trial can only be assessed in the factual context of the particular case. But it is not idle to
recall
that the purpose of the trial process is to give the prosecution a fair opportunity to establish guilt and a fair opportunity for the defendant to advance his defence. The means by which that is achieved is by ensuring that the jury has a
reasonable
opportunity to
retain
and assess the evidence laid before it and by the judge directing the jury, fairly, as to the issues which it must determine. Since juries are not
required
to give
reasons
for their
verdict,
the only objective assurance that the process by which the jury has
reached
its conclusion is
rational,
lies in the fair conduct of a trial. A
rational
conclusion demands a fair process. A trial must be managed to enable those objectives to be achieved (see introduction to the Lord Chief Justice's Protocol).
- These passages, which emphasise the absolute
right
of a defendant to a fair trial and the means by which it is achieved are
relied
on by Mr Borrelli.
- In A, Heppenstall and Potter, the court concluded that the summing-up was deficient, adding:
47. The effect of the inadequate directions to the jury was aggravated by the substantial disruption to the jury's consideration. Seventeen days, in the context of the disruption which had gone before and the summing-up, constituted far too long a gap between the hearing of the evidence, the arguments advanced and the jury's conclusions. It is not possible to have any confidence that safe
verdicts
were
reached
at the conclusion of a fair process when so great an interval elapsed during the course of the jury's deliberation.
- Drawing these strands together we have
reached
the following conclusions.
- There can be no general
rule
which determines that a particular length of time that a jury have been dispersed in the course of its deliberations necessarily
renders
a trial unfair or otherwise calls into question the safety of a conviction. The issue involves a fact sensitive analysis, as the court
recognised
in A, Heppenstall and Potter (above) at [32].
- Nevertheless, the following matters may be material, and are material to the present appeal.
- First, there is the quality of the summing-up. If there are deficiencies in the summing-up, then this may be material, see for example, A, Heppenstall and Potter (above) [33]. Conversely, while there is a
risk
that the length of dispersal will deprive the jury of a fair opportunity to assess the evidence, that
risk
will be
reduced
by a careful and meticulous summing-up, see Kellard and anor (above) p.150A-C) and A, Heppenstall and Potter [33] and [42]. In the present case, the summing up was clear and provided considerable assistance to the jury.
- Second, it may be necessary to consider the extent and quality of the material that the jury has available on
retirement,
and the extent to which this will enable them to focus on the issues and the evidence in
relation
to those issues. As we have noted, in addition to the written directions and the
routes
to
verdicts,
the jury in the present case had a considerable amount of written and photographic material. We would note that the greater the quantity of documents available to a jury in
retirement
the longer the deliberations may take, as the jury works through the documentation.
- Third, the gap in the jury's consideration between the summing up and the final
verdicts
will be
relevant
to the fairness of the process. The longer the period, the greater the
risk
that the jury will be unable to
remember
the evidence summarised in the summing up and the points made by the prosecution and defence. We
recognise
that the cumulative periods during which the jury was not considering the
verdicts
in the present case was considerable and unsatisfactory.
- Fourth, it may be
relevant
that an application was made to discharge the jury on the basis of the time in
retirement
at the time. In the present case there was an application. This is not a case in which the grounds of appeal were not foreshadowed by arguments made and concerns expressed at the time. On the other hand, judges must be prepared to make
robust
case management decisions and expect such decisions to be upheld on any appeal.
- Fifth, the existence of indications which tend to establish that, by
reason
of the length of the trial and the
retirement,
the jury were unable to discharge their functions. In other words, are there indications that the jury were alert and attentive to their task during the trial and (to the extent this can be discerned) during
retirement
on the one hand; or discontented and distracted on the other? Is there material which shows that the jury were in difficulties in discharging their task following
retirement?
In the present case there are no such indications. On the contrary it is clear that the jury were taking their time to work through the charges and the evidence in
relation
to ten defendants facing different charges before
reaching
their
verdicts.
The interruption to this process by discharging them while the defendants were in their charge might well have left them with a justifiable sense of grievance. This would be particularly so if they had already
reached
verdicts
in
relation
to some of the defendants or on some of the counts.
- Sixth, the
verdicts
themselves will be
relevant.
Do they suggest, for example, that the jury were assessing the evidence in
relation
to each defendant or were unable to do so? Here, the different
verdicts
on different charges in
relation
to ten defendants suggest that the jury had focussed on their task despite the interruptions.
- In all these circumstances, although we
recognise
that the second break in the jury deliberations was
very
far from satisfactory, we do not consider that it
resulted
in a process that was unfair to the appellants. The prosecution case against the appellants was strong, and we are not persuaded that the
verdicts are unsafe.
- Accordingly, the appeals are dismissed.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2019/1002.html