Koli, R. v

A trial judge may continue with all 12 jurors despite a juror’s personal anxiety, provided the judge reasonably concludes that the juror can still deliberate conscientiously. The judge must ensure that the jury are not placed under pressure of time. An appellate court will not interfere unless the trial judge’s assessment was outside the range of reasonable conclusions.

Sentence for breach of a preventive order must reflect the actual gravity of the non-compliance. Relevant matters include its repetition, warnings, deliberateness, harm, and any connection with further serious offending. Recall for breach of equivalent licence conditions does not remove the need for separate punishment for breach of the order.

The applicant was convicted at Southwark Crown Court of two offences of failing to comply with a Serious Crime Prevention Order. The allegations concerned failures to notify possession or use of communication devices, a computer and a motor vehicle. He was acquitted on a third count.

He sought leave to appeal against conviction on the ground that a juror’s expressed inability to sit into the following week, coupled with late-afternoon deliberations, had put the jury under improper pressure. He also sought leave to appeal against concurrent sentences of 24 months’ imprisonment for the two breaches.

The central issues were whether the Recorder should have discharged the juror, and whether the sentence properly reflected the gravity of the breaches after the applicant had already been recalled for breach of similar licence conditions.

1. Conviction. Leave to appeal against conviction was refused. The Recorder was entitled to retain the juror and to permit the jury to continue deliberating. The relevant balance was between the defendant’s entitlement to a verdict from 12 jurors where possible and the entitlement to fair consideration by jurors who were able to concentrate on the issues.

   The Court of Appeal would not interfere with the trial judge’s assessment unless it was outside the range of reasonable conclusions. The Recorder had expressly told the jury that they were under no pressure and had asked whether further deliberation that afternoon would be fruitful. The nuanced verdicts, including an acquittal and a majority verdict, supported the conclusion that the jury had conscientiously considered the case.

2. Sentence. Leave to appeal against sentence was granted and the appeal was allowed to a limited extent. Although breach of a Serious Crime Prevention Order made under sections 1 and 19 of the Serious Crime Act 2007 carried a maximum of five years’ imprisonment, there was no sentencing precedent for such a breach.

   The proper assessment required regard to the time since the order, prior non-compliance and warnings, whether the breach was inadvertent or deliberate, any connection with further serious offending, and the harm caused. The applicant had been warned and had failed to take his notification obligations seriously. However, there was no material suggesting that the breaches concealed further criminal activity or showed that the risk of serious offending which the order sought to prevent was materialising.

3. Recall for breach of licence conditions mirroring the order did not make further punishment inappropriate. The order imposed obligations independently of the licence, so the consequences of failing to notify could properly include both recall and punishment for the criminal breach.

4. The concurrent terms of 24 months’ imprisonment were manifestly excessive. The sentences were quashed and substituted with concurrent terms of 12 months’ imprisonment on counts 1 and 3.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was refused. Leave to appeal against sentence was granted and the sentence appeal was allowed to a limited extent.
• Southwark Crown Court: The applicant was convicted before Recorder Fortune on 20 January 2012 of two breaches of a Serious Crime Prevention Order and was sentenced on 15 February 2012 to concurrent terms of 24 months’ imprisonment.