Burcombe v R.

A conviction is not unsafe merely because of an irregularity in the composition of a jury or social contact between a juror and a court official. The decisive question is whether a fair-minded and informed observer, knowing the established facts, would identify a real possibility of bias or unfair prejudice.

The court must not infer improper influence from speculation. It should assess the particular information or conduct proved. A jury permitted to separate may lawfully socialise or accept lifts, although court staff should avoid contact that could risk inadvertent disclosure. Section 18 of the Juries Act 1974 prevents a verdict being reversed for defects in summoning or empanelling jurors.

The appellant was convicted at Basildon Crown Court of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979. He was the only defendant convicted after a retrial concerning the importation and distribution of duty-unpaid tobacco products.

Two jurors had improperly been added to the jury pool by a court official, Elaine Hemblade. During the trial she had lunch with the jury and had social contact with one of those jurors. The appellant contended that those circumstances created apparent bias and rendered his conviction unsafe.

The appeal therefore concerned whether the proved contact and the jury-selection irregularity gave rise to a real possibility that the jury had been improperly influenced.

1. Appeal dismissed. The appellant’s conviction was not unsafe.

2. Section 18 of the Juries Act 1974 precluded a challenge founded on the improper summoning of the two jurors. The appellant’s case therefore depended on the asserted effect of their association with the court official.

3. The governing test was that in Porter v Magill, [2001] UKHL 67: whether a fair-minded and informed observer, considering the facts, would conclude that there was a real possibility of bias. The same approach satisfied article 6(1) of the Convention. The assessment had to rest on facts established by evidence, rather than speculation.

4. There was no evidence that the official had arranged the jurors’ presence in order to prejudice the appellant, or that she had supplied either juror with information about the case. The verdicts returned against the several defendants did not support an inference of bias in favour of the prosecution. The court could not investigate jury deliberations in the absence of evidence of an exceptionally serious breach of the jurors’ oath.

5. The fact that the official had lunch with the jury, expected a lift from a juror, and may have socialised with her did not itself establish improper influence. Once a jury has been allowed to separate under section 13 of the Juries Act 1974, there is no legal prohibition on jurors accepting or offering lifts or socialising. Sensible precautions should nevertheless avoid contact capable of inadvertently disclosing information during deliberations.

6. R v Devall, [1992] Crim LR 664, and R v McNeil, [1967] Crim LR 540, were materially different. Neither involved the absence of any connection between the outsider and the parties, nor, in this case, any intrusion into the jury room or evidence of information reaching the jury.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction.
• Crown Court at Basildon: On 22 August 2007, following a retrial before HHJ Michael Brooke QC and a jury, convicted the appellant of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979.