Marshall & Anor, R. v

Unauthorised private research by a juror after retirement is a serious departure from the rule that verdicts must rest solely on the evidence and law given in court. It does not, however, automatically make a conviction unsafe. The appellate court must decide whether, in the particular case, there is a real possibility that any juror was improperly influenced to convict.

Relevant matters include the content of the extraneous material, the jury’s recourse to the judge for legal guidance, the rationality and discrimination of its verdicts, and the evidence. Trial judges should reinforce the prohibition on discussing the case or undertaking private research, including internet research.

At the Central Criminal Court, Marshall and Crump were tried with two co-accused following two robberies in which a shotgun was used. A victim of the second robbery was killed. Marshall was convicted of manslaughter and possessing a firearm with intent to endanger life. Crump was acquitted of those offences but convicted of robbery after his defence of duress was rejected.

After the jury had delivered its verdicts and dispersed, printed material downloaded from internet sites was found in its retiring room. The material concerned firearms offences, sentencing, robbery and homicide. Marshall and Crump appealed against conviction on the ground that the jury’s access to it made the verdicts unsafe. Marshall also renewed his application for leave to appeal an 18-year sentence for manslaughter.

1. The appeals against conviction were dismissed. Taking privately downloaded material into the jury room after retirement plainly contravened the fundamental rule that the jury must decide the case on the evidence heard in court. It was a serious irregularity because neither the parties nor the judge could address material which had not been introduced publicly.

2. The irregularity raised an immediate question as to the safety of the verdicts, but did not make them automatically unsafe. The court had to decide whether there was a real possibility that the material had improperly influenced a juror to convict. The court applied the safety approach discussed in R v Karakaya [2005] 2 Cr.App.R 5, while recognising that its facts were materially different.

3. The material here concerned available offences and sentencing. It was not campaigning, inaccurate or inadmissible material capable of undermining confidence in the judge’s directions. Although it might have prompted a question about alternative firearms offences, the jury asked the judge and received a correct and emphatic direction that the charged offence was the only issue.

4. The jury’s repeated requests for legal guidance, its discriminating verdicts, and the clear evidential basis for them showed that the convictions were safe. No realistic route was identified by which the material could have influenced Marshall’s convictions or Crump’s robbery conviction.

5. The court added, without prescribing a formula, that the conventional opening direction should remind jurors to try the case only on the evidence in court. It may also expressly prohibit discussion with others and private research in a library or on the internet.

6. Marshall’s renewed application for leave to appeal sentence was refused. An 18-year sentence for manslaughter was not manifestly excessive where death occurred during a planned robbery involving a shotgun, following another armed robbery hours earlier. The 12-year starting point referred to in Attorney General's Reference No 33 of 1996 (Latham) [1997] 2 Cr.App.R 9 concerned materially less aggravated knife-carrying manslaughter.

• Court of Appeal (Criminal Division) — in [2007] EWCA Crim 35, dismissed Marshall’s and Crump’s appeals against conviction and refused Marshall leave to appeal sentence.
• Central Criminal Court — convicted Marshall of manslaughter and possession of a firearm with intent to endanger life, and convicted Crump of robbery.