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))
18. Counsel for Smith in the Court of Appeal summarised his complaints about the juror's letter in his skeleton argument in the following terms, which were substantially adopted in the argument for the appellants before your Lordships:
* The burden and standard of proof had been reversed by jurors;
* Irrelevant matters had been taken into consideration;
* Jurors were speculating rather than considering the evidence;
* Improper pressure had been placed on jurors to return verdicts on all counts because of an erroneous belief that there would have to be a retrial unless verdicts were returned on all counts;
* The verdicts were not true verdicts according to the evidence."
I would accept without hesitation that the allegations, if true, contained evidence of misconduct which required the judge to take action. I am less convinced that they amounted to a charge of bias on the part of some jurors, as Miss Montgomery QC contended. Some jurors, according to the letter, had made up their minds about the defendants' guilt and were trying to overbear other members of the jury. It does not follow that they entertained any hostility against the defendants sufficient to amount to bias against them, rather than a strong opinion which they were pressing upon the others in a manner which might be criticised. There is no doubt, however, that the letter contained allegations which did amount to charges that some jurors were disregarding the judge's directions on the law, were indulging in speculation contrary to his instructions and were engaging quite improperly in horse-trading over verdicts on the several counts. In view of the conclusion which I have reached in respect of these allegations I do not find it necessary to pursue further the question of possible bias.
19. The letter contained the juror's name and address and from that fact and from internal evidence bore the indications of authenticity as a genuine letter from a juror concerned about the conduct of other members of the jury. Unlike the situation in R v Robinson  EWCA Crim 2489, where the judge prepared questionnaires designed to ascertain whether any of the jurors had written an anonymous letter sent to him by post, I think that the judge in the present case was correct in assuming the authenticity of the letter and proceeding on that basis.
20. I am unable, however, to accept that it would have been appropriate for him to question the jurors about the contents of the letter, let alone that he was obliged in law to do so. If he had gone into the allegations, he would inevitably have had to question them about the subject of their deliberations, whether the appellants were guilty of any of the offences charged. In my opinion the common law prohibition against inquiring into events in the jury room certainly extends to matters connected with the subject matter of the jury's deliberations, and I do not find anything in the opinions in R v Mirza to cast doubt upon that basic proposition. I do not think that it is necessary or desirable to attempt to draw up a precise definition of the situations in which it would be legitimate for the judge to question jurors. There may be some matters into which the judge can and should inquire in this way, for example, an allegation that a juror has used a mobile telephone to make a call from the jury room, but I should prefer to leave for future decision the limits of any such inquiry.
21. My second reason for holding that it would not have been appropriate for the judge to question jurors in this case is concerned with the probable usefulness of such a course and the effect which such questioning was likely to have upon the jury's further consideration of the case. Where, as here, the juror's communication alleged wilful misconduct on the part of certain jurors and deliberate disregard of the judge's directions on the law, the prospects of obtaining satisfactory answers to questioning would have been rather limited. If the jury were questioned as a body, it is not very likely that the members against whom misconduct was alleged would be willing to admit it, and there could be a conflict of evidence which would be very difficult to resolve. An attempt to question separately the juror who wrote the letter, as suggested by Mr Sweeney QC for Mercieca, would lead to her identification as the complainant and possible recriminations in the jury room. Even if she were not separated or identified, there could well have been suspicions, perhaps a witch-hunt and a confrontation, and at worst intimidation and coercion, when the jury resumed its deliberations. None of that would conduce to the jury's reaching a calm and harmonious decision by genuine agreement. I accordingly consider that questioning the jurors, even if it were within legitimate bounds, would have been likely to make the situation worse rather than better. I do not consider that issuing a questionnaire of the type used in R v Robinson  EWCA Crim 2489 would have been an appropriate expedient in this case.
22. The judge was accordingly left with the choice of two courses of action, to discharge the jury or to give them further instruction, on the lines of the familiar direction set out in R v Watson  QB 690, re-emphasising their duty to carry out their discussion with proper give and take. The judge took the latter course and I consider that it was justified in the circumstances. There is no suggestion in the recorded discussion that he was over-influenced by the waste of time and resources that would result from discharging the jury and he was at pains to remind the jury on various occasions that they need not feel under any time pressure. It does not appear from the terms of the letter that the jurors who were being pressed to change their verdicts as part of a bargain had committed themselves irretrievably, and it was justifiable to hope that if lectured sufficiently sternly the jury would confine their deliberations within the proper bounds of discussion.
23. The judge was entitled to be fortified in taking this course by the explicit assent and encouragement of the appellants' counsel. It is clear, however, that the ultimate responsibility was his to determine what course to take. Not only was he not bound to take the action which counsel agreed, but if he thought that another course was the correct one he was obliged to follow that, regardless of the urgings of counsel. It might perhaps be regarded as surprising that the law should permit a party to assent to one course, and indeed encourage the judge to take it, then to complain on appeal that he was incorrect to do so. As Woolf LJ said of a comparable volte-face in R v Lucas  Crim LR 844:
The appellants' counsel met this by arguing before the House that the doctrine of waiver could not operate and that it was permissible for them now to contend that the judge had taken the wrong course. Mr Perry for the Crown, in my opinion quite rightly, did not attempt to argue that there had been any waiver. He confined his submission to the proposition, which I consider correct, that the assent of counsel was at most a relevant factor to be taken into account on appeal in considering the justification for the judge's choice of his course of action.
24. Once he had decided to give the jury further directions, it was incumbent upon the judge to ensure that they were apposite, clear and as emphatic as the situation required. Those which the judge gave were modelled closely upon the standard Watson direction about the necessity for discussion and give and take in argument. He added an exhortation to the jurors not to be bullied or cajoled into giving a verdict with which they did not agree, referred to the burden of proof and adjured them to decide the case on the evidence without speculating. All that was a necessary part of any direction, but there was no reference to the need to reach verdicts on their own conscientious judgment without bargaining over them. Nor did the judge remind the jury that they must follow his directions on matters of law, which in my view required very clear and strong emphasis if it was accepted that there was any truth in the juror's letter.
25. Miss Montgomery submitted that the judge should have discussed with counsel the precise terms of the direction before he gave it, referring to such cases as R v Wright  Crim LR 510, R v McKechnie (1992) 94 Cr App R 51, R v Aitken  1 WLR 1006 and R v N  Crim LR 886, in which the desirability of such discussion in various circumstances was underlined. There are many instances in which it is of prime importance to give counsel notice of a proposed direction and furnish them an opportunity to make representations about the content. It is right to say that these instances centre largely round the formulation of directions on the law and points of evidence before the closing speeches and summing-up, so that they may be framed as accurately as possible and counsel may fashion their speeches with the proposed directions in mind. It is, however, very much a matter for the discretion of the trial judge, and there is no absolute rule. In the present case the content of the direction was not propositions of law or evidence and it is not likely that counsel could have added more than a limited amount to framing it, particularly since they had had an opportunity to make submissions about its content before the judge prepared it. I would not myself fault the judge for proceeding without showing counsel the text of his proposed direction, although to do so might have been a safeguard against inadvertent error or omission.
26. I do consider, however, that the direction was insufficiently comprehensive or emphatic. If the jury had been behaving as alleged by the juror in her letter, they required a strong, even stern, warning that they must follow the judge's directions on the law, adhere to the evidence without speculation and decide on the verdicts without pressure or bargaining. I am unable to regard the directions given as having covered these areas with sufficient particularity and emphasis, and I consider that the jury required stronger and more detailed guidance and instruction. Without that it is difficult to be satisfied that the discussion in the jury room was conducted thenceforth in the proper manner.
27. For this reason I must conclude that the verdicts were unsafe. I would answer both parts of the certified question in the negative, allow the appeals, quash the convictions and remit the case to the Court of Appeal to decide whether to order a new trial.
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