Grant, R v

A conviction is unsafe where a retiring jury inadvertently receives material not admitted against the defendant and that material is capable of affecting a live issue at trial. The risk is acute where the extraneous exhibits directly undermine an important feature of the defence. The court may quash the conviction even though the mistake was inadvertent and no fault lies with counsel or the trial judge. Where the interests of justice require it, the defendant may be retried on a fresh indictment.

The appellant was convicted of possessing cannabis with intent to supply. He admitted possession but contended that the cannabis and associated items were for personal use.

During retirement, the jury requested the exhibits. By mistake, it received a box containing items attributable not only to the appellant but also to another passenger, including further cannabis and self-seal bags. Those exhibits had not been shown during the trial as evidence against the appellant. The Recorder allowed the jury to return its verdict, while indicating that a conviction would give rise to appeal grounds.

The central issue was whether the resulting conviction was safe and, if not, whether a retrial should be ordered.

1. Appeal allowed. The conviction was unsafe and was quashed. The jury had seen a greater quantity of cannabis and substantially more self-seal bags than could properly be attributed to the appellant. It had also seen bags which were not empty, although the emptiness of the appellant’s bags formed an important part of his defence ([2011] EWCA Crim 44, para 6).

2. The error arose through inadvertence after all material found in the car and at the other passenger’s home had been placed in one box. The court recognised that the mistake was unexpected and not counsel’s or the Recorder’s fault. It nevertheless emphasised the need for Crown Court procedures to ensure careful consideration of the exhibits sent to a jury during retirement (paras 2–3).

3. The Recorder had been correct not to prevent a possible acquittal by withholding the jury’s verdict. With hindsight, the court observed that consideration could have been given to explaining the error and inviting the jury to reconsider. That course might have been appropriate on these facts, but not necessarily in every similar case (paras 4–5).

4. A retrial was ordered. The appellant was entitled to be tried properly, but should be tried. A fresh indictment was directed on the same count, with arraignment within two months. The retrial was to take place at Leeds unless directed otherwise, and the appellant was granted unconditional bail pending further order (paras 10–17).

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 44, allowed the appeal, quashed the conviction and ordered a retrial.
• Crown Court: The appellant was convicted of possession of cannabis with intent to supply after the jury inadvertently received exhibits not attributable to him.