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))

When credible allegations of jury misconduct arise during deliberations, the trial judge must take effective action. Section 8(1) of the Contempt of Court Act 1981 does not prevent a judicial investigation, but the common law ordinarily prohibits questioning about matters connected with the subject of the jury’s deliberations.

The judge may discharge the jury or give further directions, according to the circumstances. Any direction must address the alleged misconduct with sufficient clarity, particularity and emphasis. It must require jurors to follow the law, decide solely on the evidence, avoid speculation, and reach conscientious verdicts without pressure or bargaining. Counsel’s agreement is relevant on appeal but does not transfer the judge’s ultimate responsibility.

The appellants were convicted after a retrial at the Central Criminal Court of conspiracy to cause grievous bodily harm, false imprisonment, kidnapping and murder. During the jury’s deliberations, a juror sent the trial judge a detailed letter alleging disregard of legal directions, speculation, pressure upon other jurors and bargaining over verdicts. With counsel’s agreement, the judge gave further directions rather than questioning or discharging the jury. The jury subsequently convicted both appellants on every count.

The Court of Appeal dismissed their appeals: [2004] EWCA Crim 1474. Its initial reliance on section 8(1) of the Contempt of Court Act 1981 was later acknowledged to be inconsistent with R v Mirza [2004] UKHL 2, but it maintained that the judge’s chosen course was proper. The central questions were whether the judge had been obliged to question the jurors and whether counsel’s agreement altered the position.

1. The appeals were allowed unanimously. The convictions were quashed and the cases remitted to the Court of Appeal to decide whether to order a new trial. Both certified questions were answered in the negative.

2. Per Lord Carswell, section 8(1) of the Contempt of Court Act 1981 does not prevent a court from undertaking a necessary investigation into credible allegations of jury bias or irregularity. Nevertheless, the common-law prohibition against inquiry into the jury room extends at least to matters connected with the subject of the jury’s deliberations. R v Mirza [2004] UKHL 2 did not require jurors to be questioned in every case.

3. The trial judge was neither obliged nor entitled in the circumstances to question the jurors about the letter’s allegations. Such questioning would have entered directly into their deliberations concerning guilt. It was also unlikely to produce reliable answers and might have exposed the complainant, provoked recriminations or intimidation, and impaired further deliberation. The limits of permissible inquiry in other circumstances were left for future decision.

4. The judge was entitled to choose between discharging the jury and giving further instructions. Counsel’s express assent could properly fortify that choice, but the ultimate responsibility remained with the judge. Counsel’s agreement was a relevant factor on appeal; it did not amount to waiver.

5. Per Lord Carswell at [26], once the judge chose to give further directions, they had to be apposite, clear and as emphatic as the allegations required. The directions given addressed bullying, the burden of proof, evidence and speculation, but omitted sufficiently strong warnings against bargaining over verdicts and disregarding the judge’s directions on law. They were insufficiently comprehensive and emphatic. The House could not be satisfied that the jury thereafter deliberated properly, so the verdicts were unsafe.

6. Lord Bingham and Lord Walker agreed with Lord Rodger and Lord Carswell. Lord Steyn agreed with Lord Carswell’s conclusion on the inadequate directions. Lord Rodger reserved his opinion on whether an accused who deliberately chose not to seek discharge for tactical reasons could later complain that the jury should have been discharged, had the subsequent directions been adequate.

1. House of Lords: The appeals were allowed unanimously in [2005] UKHL 12. The convictions were quashed and the cases remitted to the Court of Appeal to decide whether to order a new trial.
2. Court of Appeal (Criminal Division): The appellants’ appeals were dismissed in [2004] EWCA Crim 1474. After R v Mirza [2004] UKHL 2, the court acknowledged that its original construction of section 8(1) of the Contempt of Court Act 1981 was incorrect, but maintained that the trial judge’s chosen course was proper.
3. Central Criminal Court: Following a retrial, both appellants were convicted on four counts and sentenced to life imprisonment for murder, with concurrent seven-year terms on the remaining counts.