B, R. v

Where a juror leaves the jury room in distress and reports pressure from the foreman, the trial judge should investigate the matter openly, disclose the material information to the parties, and receive informed submissions before deciding how to direct the jury.

A general direction on the jury’s collective responsibility may be inadequate where the reported concern is that a juror cannot express her view because of pressure within the jury room. A failure to take an adequately informed and responsive course may render the conviction unsafe.

The appellant was convicted at Lewes Crown Court, by a majority of 10 to 2, of assault occasioning actual bodily harm. The issue at trial was self-defence.

During deliberations, a juror left the jury room distressed. The Recorder told counsel only that a juror was upset by the discussions, and then gave the jury a general direction about their collective responsibility. Following the grant of leave to appeal, enquiries of court staff established that the juror had reported being unable to make her point and being pressured or bullied by the foreman.

The appeal concerned whether the Recorder’s response to that information had made the conviction unsafe.

1. Appeal allowed. The conviction was unsafe, was quashed, and a retrial was ordered.

2. The Recorder faced a difficult and unexpected jury-management issue. However, the information given to counsel did not reveal the full nature of the juror’s complaint. The better course was to have the court clerk and usher state openly, in the presence of the defendant and counsel, precisely what had occurred.

3. That procedure would have enabled informed submissions on the appropriate response. The reported concern was not merely that a juror was distressed by deliberations. It was that she could not put her view and was subject to pressure from the foreman.

4. The general direction on collective responsibility did not adequately address that concern. The Recorder therefore erred by failing to conduct a more open investigation, obtain informed submissions, and ensure that the jury resumed its task in an appropriate way.

5. The court could not adjudicate on later events in the jury room or seek further elaboration of subsequent complaints. The procedural error already established was sufficient to make the conviction unsafe.

6. A fresh indictment was directed, with re-arraignment within two months. The court also continued bail and made a reporting restriction under section 4(2) of the Contempt of Court Act 1981.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 1183, the court allowed the appeal, quashed the conviction, and ordered a retrial.
• Court of Appeal (Criminal Division): On 13 December 2010, a differently constituted court granted leave to appeal on limited grounds and directed enquiries into events during the jury’s deliberations.
• Crown Court at Lewes: On 13 September 2010, the appellant was convicted by a majority verdict of assault occasioning actual bodily harm. Sentence was adjourned.