Hewgill & Ors, R v

A conviction is unsafe where jurors receive unreported, non-evidential material from a defendant concerning a defendant whose verdict remains to be decided, and the court cannot objectively be satisfied that the verdict was reached impartially. The jury-deliberation rule permits investigation where there may have been a repudiation of the jury oath or the introduction of extraneous material.

Informal contact with defendants, although improper and reportable, does not itself undermine a conviction unless it introduces extraneous material, violates the oath, or creates relevant prejudice. Evidence concerning the alleged facts of an offence falls within section 98(a) of the Criminal Justice Act 2003; it is not subject to the section 101 bad-character gateway.

Six defendants were tried at Birmingham Crown Court on drug-conspiracy counts. After verdicts on most counts, the jury had one remaining count against Hewgill. Murray, having been convicted and released on bail pending sentence, approached two jurors in a public house and discussed Hewgill. The conversations were disclosed to other jurors, but not to the court. The following day the jury unanimously convicted Hewgill on the outstanding count.

The Criminal Cases Review Commission investigated that contact and earlier interactions between jurors and defendants. The appeals challenged the safety of the convictions, evidential rulings, trial-management decisions and sentences. Hancock also challenged the exclusion of evidence said to show that Hewgill did not trust him in criminal matters.

1. Hewgill’s appeal was allowed in part. His conviction on count 4 was quashed. Applying R v Thompson [2010] EWCA Crim 1623, the court held that the conversations with Murray introduced extraneous material into the jury’s decision-making process. The jurors’ failure to report the contact meant that the court could not objectively conclude that the verdict had been reached impartially and without account, even subconsciously, of what Murray had said.

   The Crown had proper grounds to submit that Hewgill might have instigated Murray’s approach. However, the court could not be sure on the available evidence that he had done so. That submission therefore did not prevent the conviction on count 4 from being set aside.

2. The earlier exchanges of pleasantries between jurors and defendants, and the juror’s reassurance to Simon Fox, were improper and should have been reported. They neither introduced extraneous material nor created prejudice capable of affecting the safety of the convictions. The conviction appeals of Hewgill, Hancock and Murray on that ground were dismissed.

3. In Hancock’s case, the trial judge erred by treating the proposed evidence about a kidnapping discussion as subject to section 101(1)(e) of the Criminal Justice Act 2003. The evidence concerned alleged facts of the charged offences and so fell within section 98(a); it was admissible under ordinary relevance principles without a discretion to exclude it. Nevertheless, in the context of the evidence as a whole, its exclusion did not render Hancock’s convictions unsafe.

4. The court refused leave on the remaining conviction and sentence grounds. Under section 4 of the Criminal Appeal Act 1968, after quashing count 4, it increased and restructured Hewgill’s sentences on the remaining counts. The substituted total sentence was 17 years’ imprisonment.

• Court of Appeal (Criminal Division): Allowed Hewgill’s appeal against conviction on count 4 and quashed that conviction; dismissed the remaining conviction challenges and varied his sentences under section 4 of the Criminal Appeal Act 1968.
• Crown Court at Birmingham: The Recorder of Birmingham convicted the appellants of drug-conspiracy offences and imposed sentence. The outstanding count against Hewgill was determined after the impugned juror contact.