No: 200605878/C4 
Neutral Citation Number: [2007] EWCA Crim 1354
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 1st May 2007
 
B E F O R E:
 
SIR IGOR JUDGE 
(PRESIDENT OF THE QUEEN'S BENCH DIVISION) 
MR JUSTICE GOLDRING
MRS JUSTICE SWIFT DBE 
 
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R E G I N A 
 
-v- 
 
KENNETH DESMOND CHARNLEY 
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Computer Aided Transcript of the Stenograph Notes of 
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MR J BENSON QC appeared on behalf of the APPLICANT  
MR D OWEN appeared on behalf of the CROWN
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J U D G M E N T
1.	SIR IGOR JUDGE:  This is an appeal by Kenneth Charnley, against his conviction on 17th October 2006 in the Crown Court at Liverpool, before His Honour Judge George and a jury, on four counts of indecent assault and one count of indecency with a child.  There was a 24 count indictment, and the jury acquitted him of seven counts of rape, one attempt rape, seven indecent assaults and four offences of gross indecency with a child.
2.	The appeal is concerned with the circumstances in which the convictions were returned.  They are quite exceptional. The foreman of the jury returned the wrong verdicts.
3.	The facts of the alleged offences need no recital.  Their nature can be gathered from the counts in the indictment.  In essence it was alleged that over a number of years the appellant committed sexual offence against with two young girls who were his then partner's children.  The appellant adamantly denied the allegations.  This was the third trial.  The first jury was unable to agree its verdicts.  The second jury was discharged following some irregularity.  The third trial proceeded in the usual way.  The judge summed the evidence up to the jury. The summing-up is beyond criticism and has not been criticised.  The judge directed the jury to return unanimous verdicts on each count.
4.	After some time considering their verdicts, the judge was sent a note by the jury which indicated the stage their deliberations had then reached.  It is unusual for details of such information to be disclosed in the Crown Court and, at the time, Judge George, in accordance with normal practice, simply told counsel that he had received the note and that it indicated that there was unanimous agreement on the majority of the counts.
5.	After a discussion with counsel, the judge decided to take the unanimous verdicts and indicated that he would give a majority verdict direction in relation to the remaining counts on the following morning.  In the meantime, of course, the jury remained in retirement.
6.	We have the note.  In the circumstances which now prevail, we must read most of it out.  It begins: "Dear, your Honour, will you please accept the following?" and it then sets out each count in the indictment in tabular form.  It indicates unanimous "not guilty" verdicts on 19 counts, and in relation to count 1, "8 - 4 guilty", and counts 2, 5, 7 and 16, "9 - 3 guilty".
7.	The jury came into court at about 3.40, something like (and this is an estimate) half-an-hour after they had sent their note into the judge.  The judge, because of the complications of the case, asked that the note should be given back to the foreman of the jury while the clerk asked the appropriate questions.
8.	The clerk to the foreman: "Please answer my first question either yes or no?  Has the jury reached verdicts upon which they are all agreed in relation to any of the counts in the indictment?"  The foreman replied "Yes".  There was something that was inaudible to the person making the record, and the judge obviously had difficulty hearing, because he said so.  He went on: "The answer to first question is:  are there any counts upon which you are all agreed on your verdict?"  The answer to that question was: "Yes, there are such counts".  The judge: "Now we're going to take verdicts on each count where they are all agreed.  Thank you."  He then indicated to the clerk to continue, who went on: "On count 1, have the jury reached a verdict on which they are all agreed?"  The foreman said: "Yes".  The clerk asked: "Do you find the defendant guilty or not guilty?"  The foreman said: "Guilty."  There was no further enquiry, the foreman having indicated that the jury were all agreed.  Precisely the same process occurred in relation to count 2, and indeed then throughout the remaining 24 counts.
9.	There was nothing specific to suggest that there were any problems with these verdicts.  Counsel asked for a short time in order to see his client and take instructions from him in the context of the mitigation plea which now lay ahead.  The jury returned to their room.
10.	While they were in the jury room, one of the jurors, immediately and as far as we can ascertain in the company of at least one other member of the jury, spoke to the jury bailiff and explained that something had gone wrong with the guilty verdicts.  The bailiff reported the gist of the conversation to the judge.  He asked that a note should be made of her report.  The note is a brief one but the gist of what was reported to the judge is plain from it: "Were the verdicts supposed to be unanimous?  They weren't unanimous". The bailiff said, "yes, that's what you got asked" [meaning that's what you were asked].  The note concludes "never given majority verdicts."  That is factually correct.  No majority verdict had indeed ever been given.
11.	The only other feature relevant as, at this stage, is that Judge George has indicated in his own note to the Court, that he was keeping a track of the verdicts, a process which as is his apparent from the transcript, on occasions, at any rate, declined into the virtually inaudible.  He would not have been aware of any concerns which any juror might have been expressing when the verdicts were being returned.  There is further material, from at least one of the jurors, explaining that while the verdicts were being taken, she was trying to attract the attention of the jury bailiff in order to give some indication of her concerns.
12.	It is reasonable to infer from the transcript of what went on afterwards that when the report was made to the judge the jury had not dispersed.  They were still at court, and in their jury room.  The judge told counsel that a report had been made to him by the bailiff of a remark by the jury, and that he took the view that he should not disclose the contents to them.  He told counsel that he would send the jury away, and shortly afterwards indeed he directed the bailiff to tell them to go home.  That indication was plainly given, but for the time being at least, seven of the jurors wanted to stay behind to witness or observe the sentencing process.  In the end, as we understand it, because of a further delay, none of them did.
13.	The judge heard mitigation.  He then passed sentence on the appellant on the counts of which he had been convicted.
14.	Shortly afterwards a letter was received from a juror.  It is written in sensible, balanced terms.  Again, because of the particular circumstances, we think that we should read most of it out as part of the judgment: 
"I would formally like to draw to your attention a possible miscarriage of justice that occurred on the above trial of which I served as a jury member.  I believe the incident occurred when the elected jury foreman delivered his verdict to the court clerk and actions that were taken following that.  The judge, His Honour Judge George, had requested a unanimous verdict from the jury and he went away to deliberate.  We had 24 counts to consider and managed to reach a unanimous verdict of not guilty for 19 of the counts.  However, the remaining five counts were split.  One count 8 for majority of guilty and four counts 9 - 3 majority of guilty.  A member of the jury informed the court usher we had come to a decision, who requested that we send a note to the judge for his consideration, which we did in a sealed envelope.  The jury's verdicts did not change from what was put in the original note to the judge.  
A little later that afternoon we were summoned to the courtroom to deliver our verdicts.  However, when the jury foreman delivered the verdicts to the court clerk, in respect of those that the jury were in split decision of, he answer 'yes' to the question 'have the jury reached a decision in which they are all in agreement' and continued to the verdict of guilty.  As a jury entering the court to deliver the verdict we were a little unsure of what was happening as we had given the note informing of the split verdicts for the attention of the judge and had no formal response to this.  The foreman, and I think rest of us jury members, were a little unsure of the process and assumed may be these majority decisions were being accepted as per the note.  During the reading of the count verdicts, I tried to catch the attention of the court usher but without success.  I was also unsure if I had misinterpreted what was happening as it was the first time I have sat as jury member.  Immediately upon returning to the court juror's room, myself and another jury member identified this to the court usher, explaining the guilty verdicts were not unanimous.  We were asked to remain in the court jurors room, while the usher went to see the judge.  The usher returned to a room a little later advising us we could go home.  She was very vague in what information she gave us and proceeded to take us down to the main jury room to be discharged from service.  Unaware of what was happening I asked the usher clarification and she responded only with the judge had accepted our verdict.  I was still unsure of what this meant.  Several jury members enquired if they were allowed up to the jury public gallery for the delivering of the sentence as the jury were previously invited by the judge after the verdicts had been delivered.  With reluctance the usher informed she would enquire with the judge.  Totally disillusioned by what had happened I returned home and did not wait for the usher to return with answer.  The following day there was an article in the local press informing the defendant had been sentenced to 3 years' imprisonment.  Since this has occurred I have been questioning the authenticity of the defendant's sentence as I am led to believe a minimum accepted majority sentencing is 10-2.  This has caused me great concern."
15.	It is fair to say that such facts as have been ascertained entirely coincide with the assertions in that letter, and we have no reason to doubt the accuracy of its contents.  We therefore admit it in the usual way under section 23 of the Criminal Appeal Act 1968.
16.	The letter having been sent to the Crown Court, together with the note of the report by the bailiff, the judge arranged for copies of the letter and the note, and his own statement of events to be sent to those with a proper interest.  He arranged for the solicitor for the appellant to consider the material and, as we understand it, the route then was from the solicitor to this Court.  Counsel then drafted grounds of appeal.
17.	The case was listed before the full Court.  The Criminal Cases Review Commission was invited to make limited enquiries of the jury.  The problem which had arisen was, of course, deeply sensitive.  Jury deliberations are private and must remain so.  Contravention of the privacy principle of the jury discussions may well be a criminal offence.  In any event, jurors are likely to be very alarmed at any enquiries of any kind, by anyone, into their verdicts.  It is therefore not a step to be taken unless there are compelling reasons to justify it.
18.	We are grateful to the Commission for the evident sensitivity with which they investigated the issues on behalf of the Court. The questions which they were requested to ask of each juror were as follows: 
"(A) After their note was sent to the judge, was there any further discussion among the jury about the verdicts on counts 1, 2, 5, 7 and 16.  If an individual juror answers 'no', to that question, the questioning of that juror must cease.  If the juror answers 'yes', a second question (b) is to be asked.   (B) Was there a change to the voting figures on the note before you return to court and the verdicts were delivered by the foreman?  If the juror answers 'no' to that question, the questioning of that juror must cease.  If the juror answers 'yes' a third question (c) to be asked.   
(C) Had the jury reached unanimous verdicts, that is verdicts on which they were all agreed on counts 1, 2, 5, 7 and 16, the verdicts on which Mr Charnley was found guilty."
19.	The Commission was able to interview 11 of the 12 jurors separately.  The twelfth juror was abroad.  The result is clear.  In summary, although not in absolutely identical terms, the evidence shows that the foreman returned unanimous verdicts of guilty on five counts when the jury was not so agreed, and when indeed there had been nothing which could be regarded as further deliberations after the note recording the voting figures, in relation to counts on which the guilty verdicts were returned, was sent to the judge. 
20.	Those, in essence, are the facts.  The prohibitions in section 8(1) of the Contempt of Court Act 1981 do not extend to investigations by or on behalf of the Court into possible jury irregularities (R v Mirza [2005] 1 AC 1118).  The same principle applies to a juror who, for unimpeachable reasons, discloses his or her concerns about the course of jury deliberations (Attorney-General v Scotcher [2005] 2 Cr App R 573). This recent authority represents a substantial change in principle, which was formerly encapsulated in R v Young [1995] QB, which suggested that the ambit of the 1981 Act operated very widely indeed and extended to any such enquiries or expressions of concern.  Nevertheless, the question which remains is whether the Court is entitled to look behind apparently clear verdicts, properly returned in open court by the foreman of the jury, in the presence of and hearing of his colleagues, by admitting evidence which suggests that the verdicts, or some of them, did not truly reflect the actual decisions of the jury.
21.	The essential principle is clear enough:  normally this is forbidden. It is also clear that, in extreme circumstances, exceptions are permitted.  One such example is R v Andrews (1985) 82 Cr App R 148.  This case involved two defendants and injuries to one child.  The jury convicted the woman, the female defendant, of positive acts of cruelty against the child and returned a verdict of not guilty of those acts in respect of the male defendant.  After the police had given evidence of the antecedent history of the woman, some 10 minutes later, a note was handed to the judge.  This read: "We thought we found the appellant guilty of wilful neglect.  What happens now?"  After discussion between judge and counsel an amended verdict was taken.  The appellant was found guilty, not of assault or ill-treatment of the child but of wilful neglect.  
22.	The appeal was advanced on the basis that the trial judge was wrong to exercise his discretion to allow the jury to return the amended verdict.  There was a further ground which needs no attention in this judgment.  Giving the judgment of the Court, presided over by Lord Lane CJ, Simon Brown J analysed some of the old authorities.  Perhaps we should just draw attention to the case of R v Vodden, referred to Simon Brown J at page 154 of the judgment, where one of the jurors delivered a verdict of not guilty.  The clerk heard, so did the chairman, who heard the same words.  The prisoner was discharged from the dock.  Others of the jury interfered.  They said the verdict was guilty.  The prisoner was brought back to the dock.  The chairman asked the jury what the verdict was.  All the 12 jurors answered that it was guilty.  They had been unanimous.  The chairman asked Owen Hughes why he had said "not guilty", to which he replied that he had said "guilty".  A verdict of guilty was recorded.  That was obviously an extreme case, but, Pollock CB is recorded as having said this in the short judgment of the court: 
"We do not think the Court is called upon to say at what interval of time a correction should be made.  All we do is to say that in the present case the interval was not too long.  Nothing has been done but what daily takes place in the ordinary transactions in life; namely, a mistake is corrected within a reasonable time, and on the very spot on which it was made."
23.	Drawing on the authorities Simon Brown J encapsulated the relevant principle in these words:  
"It seems to this Court, both on those two authorities and as a matter of general principle, that the position in law is as follows:  where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made.  In exercising that discretion he will, it goes without saying, take into account all the circumstances of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury express their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution.  The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty.  If the jury had been discharged and a fortiori if they had dispersed, it might well be impossible for the judge to allow the verdict to be changed.  That however it is unnecessary to decide upon the instant appeal.  Clearly if there were any question of the jury's verdict being altered as a result of anything they heard after a returning their initial verdict, then there could be no question of allowing a fresh verdict to be returned.  But there is here no possibility of that having occurred." 
The upshot of the appeal in Andrews was that notwithstanding that the verdict of not guilty had originally been entered the conviction was upheld.
24.	Much the same process can be seen in the case of R v Maloney [1996] 2 Cr App R 303, where a slightly different factual issue arose.  The context was section 17(3)of the Juries Act 1974 which provides that a verdict of guilty shall not been accepted unless the foreman has stated in open court the number of jurors who agreed with it and number who dissented from the verdict.  The charge was indecent assault.  A majority direction was given to the jury.  The jury returned a verdict of guilty.  The clerk omitted to ask how many agreed and how many dissented.  Later that day, the judge and counsel discussed the error.  It was agreed that the jury should be reconvened after the weekend to rectify it.  When the court was reconvened on Monday, defence counsel queried whether the error could be corrected on the basis that the jury had left the court building.  The judge took the view that it could.  The clerk of the court then proceeded to take the verdict from the jury in compliance with section 17(3) of the 1974 Act.  The appellant appealed against his conviction on the basis that the court could not take the verdict on the Monday morning.  The jury had become functus officio.  
25.	It will be appreciated that Maloney was a different case from Andrews, where the verdict itself was changed, as a result of the judge exercising his discretion, from one of not guilty to guilty.  Nevertheless, searching for principle, after an analysis of the authorities, including the decision in Andrews, the Court presided over by Roch LJ, in a judgment given by Alliot J, reached this conclusion: 
"We have no doubt at all that had it been possible to reconvene the court with the jury the moment the omission to obtain the numbers agreeing and dissenting was appreciated, which we understand from the Bar was about 5 minutes, then it would have been permissible to carry out the rectifying procedure."
26.	Finally in this context, we highlight the decision in R v Millward [1999] 1 Cr App R 61, where the Court was presided over by Lord Bingham CJ.  The issue again arose in the context of section 17(3) of the 1974 Act.  The precise circumstances do not matter.  Lord Bingham reflected on the decision in Maloney.  He said that from Maloney: 
"...it would appear,... that if a problem had arisen at the time of the jury's verdict or very shortly thereafter, the jury could have been reconvened and the correct questions put with an opportunity for the foreman to give appropriate answers as to whether the verdict was by a majority or unanimous, and if by a majority how the jurors were divided." 
Millward was at least in part based on the now overruled decision in Young, but with the other cases it demonstrates that exceptional circumstances may arise in which the fundamental principle may not be applied with its full rigour. And we have no doubt that a mistaken verdict may constitute an irregularity which, following Mirza, may now properly investigated by this Court.  
27.	We return to this case.  Assuming that absolutely nothing happened when the verdicts were being recorded and that the juror was not seeking to draw attention of the bailiff to a problem with them, the reality is that doubts were expressed by at least the one juror, immediately after the verdicts were returned and the jury had left the actual court in which the verdicts were returned, and he or she was either on her way to or was in the jury room. The concerns were made directly to the bailiff.  The jury had not dispersed.  In our judgment, it was open to the trial judge to have investigated immediately with the jury whether there was anything in the concerns expressed by the juror to the bailiff.  Such investigations, conducted in whatever manner the judge saw fit, would have revealed what we now know.  
28.	There is no question here of the jury dispersing, with one member or another subsequently writing to express hesitation about the process.  Nor is there any question of jurors, at that stage, having been exposed to any outside influences.  Even though we are assuming that doubts were not expressed in court by any juror when the verdicts were actually being returned, we are satisfied that the doubts were expressed at a sufficiently proximate time and place to the events in court that they fall within the permissible exceptions to the normal rule.
29.	The next question is whether the fact that the problem was not investigated there and then should create some insurmountable hurdle for the appellant.  We have every sympathy with the judge.  The situation which faced him was highly unusual and, for the reasons already given, extremely delicate.  With hindsight, it is possible to see that the better course would have been for him to reconvene the jury in order to investigate whether the foreman's response to questions accurately reflected the true position.  In any event he had jurisdiction to do so.  If that jurisdiction was available to him, then it is available to us.  It must, of course, be exercised with great circumspection, but it is a jurisdiction which can now be exercised in the confident expectation that the necessary investigations will be conducted, as these were, with absolutely scrupulous care by the Commission.  
30.	We are left with this situation.  Whatever the answers given by the foreman, in reality the verdicts on the five counts with which we are concerned were not the unanimous verdicts of the jury.  The judge had never given a majority direction at all and, in any event, the requisite minimum of 10 jurors did not agree to the guilty verdicts.  In reality, they were non-verdicts, returned in error by the foreman.  The Crown accept that the purported convictions are unsafe.  We agree.  We have now taken the step which the judge could have taken at the time.  In our view, these convictions must be set aside.  They will therefore be quashed.
31.	No application is made for a new trial in the circumstances already outlined.  This was the third such trial. Beyond quashing the conviction, no further order arises.
32.	MR BENSON:  May I mention one thing?  It is during the course of my submissions, I did refer to the juror by her full name, through oversight.  Of course, I know that the Court will be keen to ensure that there is no reporting of that fact.
33.	 SIR IGOR JUDGE:  I would be very grateful, if anybody who was present in Court and wants to put in a report, does not actually name the juror who put in the letter; it could be a source of great embarrassment.  Thank you very much.