AM, R. v

Where a jury has been discharged, recalling eleven former jurors and selecting only a replacement juror amounts, strictly, to pre-selection and breaches the ballot requirement in section 11(1) of the Juries Act 1974. That breach is an irregularity, not necessarily a ground for setting aside a conviction.

Under section 18, a defendant must object at the time or as soon as practicable and must expressly adopt any objection raised by the prosecution. A defendant who takes a neutral stance at trial cannot rely on the unadopted prosecution objection after conviction.

The appellant was convicted at Snaresbrook Crown Court of administering chloroform and two rapes of his wife, and was sentenced to concurrent terms of eight years’ imprisonment.

After the original jury had been sworn and the trial had begun, one juror proved insufficiently proficient in English. The judge discharged the whole jury, recalled the remaining eleven jurors, selected one replacement by ballot from the waiting panel, and re-swore all twelve jurors. Defence counsel did not object, although prosecution counsel raised a cautionary concern about the ballot process.

The appeal challenged the validity of the reconstituted jury and contended that the trial was a nullity.

1. Appeal dismissed. The reconstitution of the jury did not comply strictly with section 11(1) of the Juries Act 1974. Although every juror had at some stage been selected by ballot, the eleven recalled jurors had been pre-selected for the second trial once the first jury was discharged.

2. The court followed R v Mulkerrins and Sansom (unreported, 20 June 1997). That materially indistinguishable decision established that the original ballot became irrelevant after the jury’s discharge and that recalling eleven former jurors with one replacement breached the statutory balloting requirement. The breach was therefore an irregularity.

3. Sections 18(1) and 18(2) governed its consequence. They prevent a judgment after a jury verdict being set aside for an irregularity in summoning, empanelling, or balloting jurors unless an objection was taken at the time, or as soon as practicable, and the irregularity was not corrected.

4. The prosecution’s cautionary discussion was not, ordinarily, an objection. Even treating it as one, the appellant could not rely on it because his counsel neither objected nor expressly adopted it. Having taken a neutral position while the judge considered the course, the defence could not invoke the irregularity after conviction. The statutory bar therefore applied.

5. The court added that practical arrangements for replacing jurors may properly be agreed when difficulties arise early in a trial. It discouraged purely technical objections where the jurors were genuinely drawn at random from the panel and their later irregular selection followed an initially regular selection process.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed in [2012] EWCA Crim 2056.
• Crown Court at Snaresbrook: On 10 October 2011, the appellant was convicted of administering chloroform contrary to section 22 of the Offences against the Person Act 1861 and of two rapes. He received concurrent eight-year sentences.