Neutral Citation Number: [2011] EWCA Crim 1183
Case No: 201005276 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 5 May 2011
 
B e f o r e:

LORD JUSTICE LEVESON 

MR JUSTICE OPENSHAW 
 
HIS HONOUR JUDGE GOLDSTONE QC
(Sitting as a Judge of the CACD) 
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R E G I N A 

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Miss T Adkin appeared on behalf of the Appellant

Mrs A Toynbee appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE LEVESON:  On 13 September 2010 in the Crown Court at Lewes before Mr Recorder Snowden QC and a jury, this appellant was convicted by a majority verdict of 10 to 2 of an offence of assault occasioning actual bodily harm.  Sentence for the offence has been adjourned.  On 13 December 2010 this court (differently constituted) granted leave to appeal on limited grounds and directed that an enquiry be made from the jury bailiff and the clerk of the court as to what transpired during the course of the jury's deliberations.  That investigation has now been conducted.
2.	As was made clear in the judgment of this court on 13 December, the facts of the case are not important for the purposes of this application.  They were then summarised in this way.  On 29 May 2009 a fight broke out between the applicant and the complainant in a park at Copthorne.  The prosecution alleged that the complainant was punched by the appellant during the fight.  The complainant said that he was not the aggressor but was surrounded by a number of men who tried to punch him.  Although he missed some punches, the appellant punched him on the side of the face from his right‑hand side and behind him.
3.	It was the defence case that the appellant accepted that he punched the complainant and that as a result he had broken his jaw.  The complainant had, however, acted aggressively and lunged towards him, whereupon he reacted by putting up his right hand in a clenched fist.  Thus the issue for the jury was whether the appellant had acted in self‑defence.
4.	The trial proceeded in a manner to which no objection is taken.  The jury retired to consider their verdict at 1.10pm on 15 September.  At 3.55pm the court was reconvened in the absence of the jury.  The learned Recorder addressed counsel in these terms: 
"I have had a note from the jury which indicates at the moment that they have not reached a unanimous decision.  I have also been made aware that certainly one member of the jury is currently in the corridor outside the jury room a little distressed, I think caused by the discussions that are going on in the jury room, so she is just literally outside the jury room door; she has not separated otherwise from the jury but she has just left the room to say that she is a little distressed.  Obviously what I propose to do is to bring the jury back and tell them that they are not going to have to consider their verdicts any longer this evening; that seems perfectly sensible.  I was probably also going to simply give them a rather soft form of the Watson direction..."   
Counsel made no observations upon the learned judge's view.  
5.	At 4.05pm the jury were brought back into court and were then directed by the Recorder about their collective responsibility in these terms: 
"Can I ... read some wise old words of a Lord Chief Justice, and they say this: each of you has taken an oath to return a true verdict according to the evidence.  No one must be false to that oath, but you have a duty not only as individuals but also collectively; that is the strength of the jury system.  Each of you takes into the jury box with you your individual experience and wisdom.  Your task is to pool that experience and wisdom.  You do that by giving your views and listening to the views of others.  There must necessarily be discussion, argument and give and take within the scope of your oath.  That is the way in which agreement is reached." 
6.	During the course of the application for leave to appeal, the court directed that enquiries be made of the jury bailiff and the clerk to the court, not only as to what precisely had transpired, but also as to the information passed to the Recorder in order that he could judge the appropriate approach.  This court went on: 
"In our judgment it is, or at least may be, of concern that the Recorder did not share with counsel whatever he learnt as to the cause of the juror's distress in order that submissions could be made as to the propriety of the course of action which he intended to adopt." 
7.	Those enquiries have now been made, and we have statements from the court usher and the clerk of the court.  The usher reports: 
"Around 3.50pm on 16th September 2010 I was sitting outside the jurors' retirement room when a female juror burst out.  She looked distressed and told me that she couldn't go back into the room as she couldn't get her point across and felt that it was unfair.  She said that the foreman was putting a lot of pressure on her.  At this point ... [the court clerk] appeared and overheard what was happening.  [She] went to speak with the judge while I sat with the juror.  
I told the juror to calm down as she wasn't meant to discuss the case with me.  All jurors were then brought back into court before being sent home for the night.  I told the distressed female juror before she left the court that if she had any concerns then she would have to write them down so they could be passed onto the judge.  When I saw the juror the following day she passed me a note to pass to the judge.  This note was not in relation to her distress of the previous day but a question about the case.  The juror appeared much calmer than the previous day." 
8.	The court clerk reports the incident in slightly different terms.  She says: 
"... the jury bailiff was sitting outside when a female member of the jury burst out of the room in a distressed state.  The juror told the bailiff ... that she was being bullied by the foreman, couldn't get her point across and couldn't go back into the room.  
I caught the tail end of the conversation as the juror kept on repeating herself.  She wanted to tell us the specifics of what had been happening but I told her she couldn't do this." 
The court clerk then reported the matter to the learned judge.  
9.	It is abundantly clear that the Recorder's approach did not include informing counsel of the full nature of the events which had occurred.  In that regard, in our judgment, the better course would have been for the Recorder to have asked both the court clerk and the usher to articulate in open court in front of the defendant and counsel precisely what had transpired in order that he might receive informed submissions as to the approach to be adopted with the jury.  It is unfortunate that what he said to counsel about what had transpired did not present the full picture, and both Miss Adkin, on behalf of the appellant, and Mrs Toynbee, on behalf of the Crown, recognise that had they known the detail which is now in the papers before us, they would have made submissions as to the adequacy of the approach that the judge intended to adopt when directing the jury as to their task.  Mrs Toynbee points to the fact that the juror did not return the following morning with a note complaining of the foreman's conduct, but it cannot be gainsaid that the judge's approach was not informed by the views of counsel.  Further, in our judgment, it was inadequate in the circumstances of the allegations to which we have referred and did not sufficiently deal with the criticism being made.  
10.	What transpired in the jury room thereafter is not of course a matter upon which this court can adjudicate.  We repeat that the subsequent complaint by jurors to members of the family of the appellant is not a topic upon which further elaboration can now be sought: see the judgment of 13 December 2010 at paragraphs 11‑14.
11.	In the light of our conclusions as to the approach adopted by the Recorder, who was faced with a difficult jury management situation with which he had to deal with no notice, we do conclude that he fell into error by failing to conduct a more open investigation, ensuring that he received informed submissions from counsel as to the approach to be adopted and then ensuring that the jury approached their task in an appropriate manner. 
12.	In those circumstances, we conclude that this conviction is unsafe and must be quashed. 
13.	MRS TOYNBEE:  In relation to a retrial, my Lords, can I ask that there be some directions as to a fairly tight time schedule for re‑arraignment? 
14.	LORD JUSTICE LEVESON:  First of all you have to ask for a retrial and then we have got to order one.
15.	MRS TOYNBEE:  Indeed.  Obviously, I am phrasing that question that way and that will be the next issue.  I would make that request now, if I may take my Lord's time.
16.	LORD JUSTICE LEVESON:  All right.
17.	MISS ADKIN:  All I pray in aid is the delay.  The matter is going back some time now as far as witnesses are concerned.  I am in your Lordship's hands.
18.	LORD JUSTICE LEVESON:  Right, thank you.  (Pause)
19.	We shall direct a retrial.  In the circumstances, we allow the appeal, quash the conviction and order the appellant to be retried for the offence of assault occasioning actual bodily harm.  We direct that a fresh indictment be served, and that the appellant be re‑arraigned on the fresh indictment within two months.  The appellant's bail is continued on the same terms as before.  We make an order under section 4(2) of the Contempt of Court Act 1981 restricting reporting proceedings until after the conclusion of the retrial.  The venue for the retrial should be determined by the presiding judge for the South Eastern Circuit, although the re‑arraignment can take place at the Crown Court at Lewes.  The appellant should be aware that an application for representation at that retrial must be made to Havering Magistrates' Court pursuant to paragraph 7 of the Criminal Defence Service (General) (No 2) (Amendment No 4) Regulations 2009, which amend the Criminal Defence Service (General) (No 2) Regulations 2001 by substituting new Regulation 9.