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Session 2004 - 05
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Regina v. Smith (Appellant) (2004) (No 2) (On Appeal from the Court of Appeal (Criminal Division)) Regina v. Mercieca (Appellant) (On appeal from the Court of Appeal (Criminal Division))
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. Smith (Appellant) (2004) (No 2) (On Appeal from the Court of Appeal (Criminal Division)) Regina v. Mercieca (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) ON WEDNESDAY 16 FEBRUARY 2005 The Appellate Committee comprised: Lord Bingham of Cornhill Lord Steyn Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord Carswell HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERegina v. Smith (Appellant) (2004) (No 2) (On Appeal from the Court of Appeal (Criminal Division))Regina v. Mercieca (Appellant) (On Appeal from the Court of Appeal (Criminal Division))[2005] UKHL 12LORD BINGHAM OF CORNHILL My Lords, 1. 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. LORD STEYN My Lords, 2. 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. LORD RODGER OF EARLSFERRYMy Lords, 3. 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:
4. 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. 5. 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. LORD WALKER OF GESTINGTHORPE My Lords, 6. 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. LORD CARSWELL My Lords, 7. 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. 8. 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:
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. 9. 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. 10. 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. 11. 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 :
12. The judge furnished copies of the juror's letter to counsel and saw them in his chambers, in the absence of the defendants. He invited submissions from counsel and Mr Black QC for the Crown suggested that he should give them a "powerful direction" to act on his instructions on the law and remind them of their duty to follow their own beliefs in the light of the oath they had taken. The judge indicated that that was the view which he had himself provisionally formed. Mr Blunt QC on behalf of Smith referred to the risk of a corrupt verdict, that verdicts of guilty on counts 1 and 2 could be returned in exchange for not guilty verdicts on counts 3 and 4. He and Mercieca's counsel asked for and were given an opportunity to take their clients' instructions. It appears from the material before the Court of Appeal that if it were not for tactical considerations Mr Blunt would have sought the discharge of the jury, on the ground that a direction from the judge would not succeed in putting right the jury's approach to the case. The tactical consideration which prevailed with him was that if the jury, as counsel expected, convicted on counts 1 and 2 but either acquitted or disagreed on counts 3 and 4, his client could escape conviction on the more serious counts. He so advised Smith, who agreed to the course which the judge had proposed and which counsel for this reason recommended. Mercieca also consulted with his counsel, but there was no evidence as to why he agreed to the course proposed. 13. A short time later the hearing resumed, in open court in the absence of the jury. Counsel informed the judge that they were in agreement with his proposed course of giving the jury a further direction and discussed the matters which might be included. The judge then recalled the jury and addressed them in the following terms:
The jury then retired again at 11.35 am on 29 May and continued their deliberations. At 2.55 pm they returned to court, having sent a note to the effect that they had reached a majority verdict on two of the counts but not on the other two and required further instructions. The judge asked them to continue considering their verdicts for a period. They separated overnight and resumed on the morning of 30 May. At 12.30 pm they sent a note reaffirming that they had agreed on two counts but could not reach verdicts on the remaining two. The court commenced to assemble, assuming from the terms of the note that a verdict would be taken on two counts and the jury would then be discharged. Before the jury came in, however, they sent a further note stating that verdicts had been reached on all counts. They came into court at 12.44 pm and returned majority verdicts of guilty against both defendants on each count. 14. The Court of Appeal (Buxton LJ, Goldring and Mackay JJ) held, following the views expressed in R v Young [1995] QB 324, 330, that the judge was precluded by the terms of section 8(1) of the Contempt of Court Act 1981 from carrying out an investigation into irregularities alleged to have occurred in the jury room. He was faced with the alternative of discharging the jury or giving a further direction and could not be criticised for choosing the latter course, the more so since counsel had expressly agreed that that was preferable. 15. On 22 January 2004 this House gave judgment in R v Mirza [2004] UKHL 2, [2004] 1 AC 1118, in which it was held, disapproving the observations in R v Young, that section 8(1) of the Contempt of Court Act 1981 did not have the effect of preventing the judge from conducting an investigation into the events which took place in the jury room. Buxton LJ sent a note to counsel dated 2 February 2004, stating that in the light of R v Mirza the court's reasoning in paragraphs 82 to 84 of its judgment based on section 8(1) was incorrect, but the court still was of the opinion that the judge's action was correct. He summarised its view as follows:
The Court of Appeal was not at that time minded to certify questions for an appeal to your Lordships' House, but after receipt of further written submissions it did on 5 April 2004 certify the following points of law:
Leave to appeal was refused, but on 11 October 2004 the Appeal Committee gave leave to appeal to the House of Lords. 16. The principles of the common law relating to inquiry into the verdicts of juries and matters which may affect the propriety of the manner in which they reach their verdicts have been rehearsed in R v Mirza, particularly in paragraphs 94 to 107 of the opinion of Lord Hope of Craighead, and it is unnecessary for me to repeat what their Lordships have said there. It may nevertheless be helpful if I set out in a series of brief propositions how the law stands, prior to considering how a judge should approach a situation such as that encountered in the present case: (1) The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury's deliberations while they are considering their verdict in their retiring room: Ellis v Deheer [1922] 2 KB 113, 117-118, per Bankes LJ; R v Miah [1997] 2 Cr App R 12 at 18, per Kennedy LJ; R v Mirza, paragraph 95, per Lord Hope of Craighead. (2) An exception to the above rule may exist if an allegation is made which tends to show that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or tossing a coin. Such conduct would be a negation of the function of a jury and a trial whose result was determined in such a manner would not be a trial at all: R v Mirza, paragraph 123, per Lord Hope of Craighead. (3) There is a firm rule that after the verdict has been delivered evidence directed to matters intrinsic to the deliberations of jurors is inadmissible. The House so held in R v Mirza, affirming a line of cases going back to Ellis v Deheer [1922] 2 KB 113 and R v Thompson (1961) 46 Cr App R 72. (4) The common law has recognised exceptions to the rule, confined to situations where the jury is alleged to have been affected by what are termed extraneous influences, eg contact with other persons who may have passed on information which should not have been before the jury: see such cases as R v Blackwell [1995] 2 Cr App R 625 and R v Oke [1997] Crim LR 898. (5) When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors, judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner. This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence: R v Orgles [1994] 1 WLR 108. (6) Section 8(1) of the Contempt of Court Act 1981 is not a bar to the court itself carrying out necessary investigations of such matters as bias or irregularity in the jury's consideration of the case. The members of the House who were in the majority in R v Mirza all expressed the view that if matters of that nature were raised by credible evidence the judge can investigate them and deal with the allegations as the situation may require: see the opinions of Lord Slynn at paragraphs 50-51; Lord Hope of Craighead at paragraphs 92, 112 and 126; Lord Hobhouse of Woodborough at paragraphs 141 and 148; and Lord Rodger of Earlsferry at paragraph 156. 17. None of their Lordships specified the steps which it is open to the trial judge to take in the last-mentioned type of case, and the issue now before the House is the nature of the inquiry which can properly be made and the extent to which, if at all, it is permissible to question jurors about matters which took place during their deliberations. Counsel for the appellants submitted that the judge in the present case was obliged to question the members of the jury about the criticisms made in the juror's letter. In the absence of such inquiry he had to assume the truth of the contents, in which case further direction would not have been sufficient and discharge of the jury was the only option open to him. Alternatively, it was submitted that if it could have been a sufficient course to give a further direction, that which was in fact given was insufficient in the circumstances. |
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