Mears & Anor, R. v

Where a juror has received information or views from an extraneous source, the question is whether a fair-minded, independent and informed observer would conclude that the jury could reach its verdict without taking that material into account, even subconsciously. The observer must assess the risk from the available raw material and not adopt the trial judge’s factual assessment as decisive.

A direction to decide the case only on the courtroom evidence will not cure a real risk that extraneous information or opinion has entered the jury’s deliberations. In that event the convictions are unsafe.

The appellants promoted and operated a Christmas attraction. They were convicted at the Crown Court at Bristol of eight offences under the Consumer Protection from Unfair Trading Regulations 2008 and sentenced to imprisonment. They appealed against conviction and sought leave to appeal against sentence.

The principal ground concerned a juror who communicated with her fiancé during the trial. He had observed proceedings, including occasions when the jury was absent. The juror received messages from him and accepted that she had passed some information to another juror. The central issue was whether those events created a real risk of bias requiring the jury to be discharged.

1. The appeals against conviction were allowed and the convictions quashed. The trial judge correctly identified the applicable apparent-bias test, but did not apply it correctly. The question was not whether the judge was personally satisfied about what had been communicated. It was whether a fair-minded, independent and informed observer, considering the available material in its context, would conclude that the jury could decide the case without taking extraneous material into account, even subconsciously.

2. The observer had to make an independent assessment from the raw material. The judge’s findings about what other jurors had or had not received could not simply be attributed to that observer.

3. There was a real risk that information and views from the juror’s fiancé had reached the jury and could adversely affect its view of the appellants. The fiancé had attended substantial parts of a long trial, including proceedings in the jury’s absence. The messages and the juror’s conduct supported the inference that the case was discussed privately. A message stating “Guilty” was particularly significant.

4. The risk was not neutralised by the other jurors’ public responses to the judge’s questions. The questions were insufficiently clear, and the juror had admitted communicating information to at least one other juror. The further direction to decide the case only on the evidence heard in court could not allay the resulting risk.

5. It was therefore unnecessary to hear argument on the separate ground concerning the burden of proof for the defence under regulation 17 of the Consumer Protection from Unfair Trading Regulations 2008.

• Court of Appeal (Criminal Division): Appeals against conviction allowed; convictions quashed: [2011] EWCA Crim 2651.

• Crown Court at Bristol: Before His Honour Judge Horton, each appellant was convicted on eight offences under the Consumer Protection from Unfair Trading Regulations 2008, sentenced to a total of 13 months’ imprisonment, and disqualified from acting as a company director for five years.