Mpelenda & Anor, R v

Where jurors obtain and discuss extraneous internet material, the appellate court must investigate whether it created a real risk of unfairness in the deliberations. A conviction is unsafe where the jury may have considered adverse material that the defendant had no proper opportunity to answer.

Jurors must decide solely on the evidence and directions given in court. In particular, mere presence at the scene is insufficient for participation in a joint enterprise. Deliberate presence intended to encourage others may suffice. A jury’s internet-derived misunderstanding of that distinction can contaminate its verdicts and require retrial.

The appellants were convicted at Snaresbrook Crown Court of offences including false imprisonment, blackmail and assault occasioning actual bodily harm. Antwi was also convicted of kidnapping. The prosecution alleged that the complainant had been detained and assaulted while money was demanded from him; the appellants denied the material allegations.

After the verdicts, a juror reported that other jurors had conducted internet searches during their retirement. A Criminal Cases Review Commission inquiry established that one juror had researched joint enterprise and had conveyed an erroneous understanding that mere presence made a person guilty. The inquiry also indicated that extraneous material affected the votes of two jurors.

Both appellants appealed against conviction. The central issue was whether the internet research created a real risk that the jury’s deliberations, and therefore the verdicts, had been unfairly contaminated.

1. The appeals were allowed. The convictions were quashed and a retrial was ordered.

2. The court admitted the Criminal Cases Review Commission report under section 23 of the Criminal Appeal Act 1968. Its inquiries established that juror 12 had undertaken prohibited internet research into joint enterprise and had discussed its results with other jurors. The research had introduced the erroneous proposition that presence at an incident, without intervention, was sufficient for guilt.

3. The trial judge had given clear and comprehensive directions. He had expressly prohibited external research and had correctly directed that mere presence at, or close to, the scene of a crime was not enough. Participation could nevertheless be established by a role in furthering the common plan, or by deliberate presence intended to encourage others or intimidate the victim.

4. Applying R v Thompson and Others [2010] EWCA Crim 1623, the court considered whether the extraneous material created a real risk of unfairness. It could not investigate or speculate about the jury’s deliberations. However, the disputed evidence, the importance of participation in the alleged joint enterprise, and the erroneous internet-derived account of the law meant that unfairness could not be excluded. The Crown’s submission that some verdicts might safely stand was therefore rejected.

5. A fresh indictment was to be served for the appellants’ appearance with their co-accused in the retrial proceedings. Further directions were left to the Recorder of Redbridge.

• Court of Appeal (Criminal Division): Allowed the appeals against conviction, quashed the convictions and ordered a retrial.

• Crown Court: At Snaresbrook Crown Court, Antwi was convicted of kidnapping, false imprisonment, blackmail and assault occasioning actual bodily harm. Mpelenda was convicted of false imprisonment, blackmail and assault occasioning actual bodily harm. Sentence was adjourned.