Charnley, R. v

A court will ordinarily not investigate or go behind verdicts apparently returned in open court. An exception may arise where an immediate and credible report indicates that the foreman returned verdicts which did not reflect the jury’s actual decisions, particularly before the jury has dispersed or been exposed to outside influence.

The court may then investigate the irregularity with great circumspection. A purported unanimous guilty verdict is a non-verdict if the jury was not unanimous, no majority direction had been given, and the statutory minimum for a majority verdict was not met. A conviction founded on such a verdict is unsafe and must be quashed.

The applicant appealed convictions entered at Liverpool Crown Court on 17 October 2006 for four indecent assaults and one offence of indecency with a child. The jury acquitted him of the other counts on a 24-count indictment.

Before verdicts were taken, the jury sent a note recording unanimous acquittals on 19 counts and guilty majorities of 8–4 or 9–3 on the remaining five. The judge had directed unanimous verdicts and had not given a majority direction. The foreman nevertheless answered that the jury were unanimous and returned guilty verdicts on those five counts.

Immediately afterwards, jurors reported the error. The central issue was whether the court could investigate the apparent verdicts and, if so, whether the resulting convictions were safe.

1. Appeal allowed. The five convictions were unsafe and were quashed. No order for a new trial was sought or made.

2. The ordinary rule prevents an appellate court from looking behind clear verdicts returned by a foreman in open court. That rule nevertheless admits exceptional cases. Under Contempt of Court Act 1981, section 8(1) did not prevent an investigation, conducted for the court, into a possible jury irregularity. A juror who disclosed concerns for proper reasons could also be considered: R v Mirza [2005] 1 AC 1118 and Attorney-General v Scotcher [2005] 2 Cr App R 573.

3. The earlier authorities showed that a judge may, in an appropriate and proximate case, investigate or permit correction of an erroneous verdict before the jury has dispersed. Relevant considerations include the time since the apparent verdict, the probable cause of the error, fairness to both sides, and whether the jury may have received anything after returning the original verdict.

4. Here the report was made immediately after the verdicts, directly to the bailiff, while the jury remained at court. There was no dispersal and no possibility of outside influence. The trial judge therefore had jurisdiction to investigate whether the foreman’s answers reflected the jury’s true position. With hindsight, the better course was to reconvene the jury at once. The Court of Appeal had the same jurisdiction, to be exercised with great circumspection.

5. The subsequent careful inquiry established that the jury had never agreed unanimously on the five guilty verdicts. No majority direction had been given and fewer than 10 jurors supported guilty verdicts. The verdicts were therefore non-verdicts returned by the foreman in error, rather than true verdicts of the jury.

• Court of Appeal (Criminal Division): allowed the appeal and quashed the five convictions: [2007] EWCA Crim 1354.
• Liverpool Crown Court: on 17 October 2006, convicted the applicant of four indecent assaults and one offence of indecency with a child following the third trial. The jury had been unable to agree at the first trial, and the second jury had been discharged following an irregularity.