Wilson, R. v

Where jurors are inadvertently exposed to material suggesting that a defendant faces another matter, the question is whether a fair-minded and informed observer would see a real possibility of jury bias. The risk must be assessed on the most damaging reasonable interpretation of the material, following R v Docherty [1999] 1 Cr App R 274.

A firm, case-specific direction to decide only on the evidence, and the lawful admission of relevant bad-character evidence, may mean that an unspecified further charge creates no real possibility of unfair prejudice. The decision whether to discharge the jury remains within the trial judge’s discretion, subject to appellate review for safety of the conviction.

The appellant was tried in the Crown Court for unlawful wounding arising from an altercation with Andrew Martin. The central factual issue was whether the appellant had acted in self-defence. Evidence of the appellant’s previous convictions for violence was admitted under the Criminal Justice Act 2003.

During the trial, two jurors became aware from the electronic court list that the appellant was separately listed for another matter. That matter concerned an affray to which he had pleaded guilty. The trial judge refused an application to discharge the jury, despite Crown support for it, and gave a strengthened direction that the jury must decide only on the evidence heard in court.

The appeal raised whether the refusal to discharge the jury created a reasonable apprehension of bias and rendered the conviction unsafe.

1. Appeal dismissed. The trial judge’s refusal to discharge the jury was properly open to him. The conviction for unlawful wounding was safe.

2. The decision whether to discharge a jury following possible exposure to extraneous material is one of judgment and discretion for the trial judge. An appellate court does not substitute its own view merely because it might have reached a different conclusion. It may intervene where the decision was not properly open to the judge and the conviction is thereby unsafe.

3. The judge correctly adopted the reasonable-apprehension-of-bias test from In re Medicaments (No 2) [2001] 1 WLR 700. The objective question was whether a fair-minded and informed observer would conclude that there was a real possibility of jury bias. Under R v Docherty [1999] 1 Cr App R 274, potentially inadmissible information capable of more than one reasonable interpretation had to be assessed on its most damaging reasonable interpretation.

4. The facts that court lists were publicly available, that electronic lists routinely appeared in jury areas, and that some jurors might be legally qualified did not themselves answer the issue. Nor was it satisfactory simply to assume that the juror had made no further inquiry. The proper approach was to assume that jurors might infer that the appellant faced another unspecified charge.

5. With hindsight, the better course would have been to confront that possibility expressly and tell the jury that it was irrelevant. However, the appellant’s counsel had preferred that this not be done. The direction actually given was firm and specifically prohibited speculation about matters outside the evidence. Further, the jury properly knew of several previous convictions for violence. In that context, knowledge or suspicion of another unspecified charge did not create a real possibility of bias.

6. The court added, as practical guidance, that those responsible for Crown Court lists should take steps to prevent jurors from seeing that a defendant on trial is listed for other matters.

• Court of Appeal (Criminal Division): Dismissed the appeal and held that the Crown Court conviction was safe.
• Crown Court: The trial judge refused to discharge the jury after two jurors noticed a separate listing concerning the appellant, and the jury convicted him of unlawful wounding.