Matthews, R. v

A trial judge may discharge an individual juror and continue with the remaining jury where that course preserves fairness and removes any real risk that the incident has contaminated the verdict. The trial judge is best placed to evaluate that question on the particular circumstances.

Where prejudicial material is inadvertently heard by a jury, the question is whether continuing the trial would or could produce an unsafe conviction because of unfair prejudice. Relevant matters include the trial issues, the material’s impact and manner of admission, its prejudicial effect, and whether a clear direction can remedy it. Sentencing for breach of a restraining order may take account of previous breaches of that same order.

R v Paul Andrew Matthews appealed, with leave of the single judge, against convictions and concurrent sentences of 12 months’ imprisonment imposed at Bradford Crown Court on 2 July 2012 for two breaches of a restraining order.

The prosecution alleged that he telephoned the complainant repeatedly on 30 December 2011 and 1 January 2012. The case turned on credibility because no call records were produced.

During the trial, a juror reported an encounter with the appellant and was discharged. The complainant also referred to the appellant having been in prison. The central issues were whether the remaining jury should have been discharged and whether the references to imprisonment made the convictions unsafe.

1. The appeals against conviction and sentence were dismissed. The trial judge was entitled to discharge the juror who had encountered the appellant and to continue with 11 jurors. The trial had only just begun, the juror had reported the incident, the allegation of a hostile gesture was unsubstantiated, and the judge was best placed to assess whether fairness required further action. There was no risk of contamination of the remaining jurors, so the convictions were not unsafe on this ground.

2. The court applied the approach in R v Lawson [2007] 1 Cr App R 20, which it regarded as no different from that in R v Doherty [1999] 1 Cr App R 274. The question where prejudicial material inadvertently reaches the jury is whether continuing the trial would or could result in an unsafe conviction through admission of unfairly prejudicial material. The evaluation is fact-specific and includes the issues at trial, the effect and circumstances of the material, its potential prejudice, and whether a direction can cure it.

3. The references to imprisonment concerned earlier breaches of the same restraining order, which were already, or were to be, in evidence. The judge clearly directed the jury that the imprisonment evidence had to play no part in deciding whether the appellant made the alleged calls. Consistently with R v Kennedy [2012] EWCA Crim 1078, the judge was best placed to assess prejudice and remedy. The Court of Appeal would not interfere with his evaluation; the convictions remained safe.

4. The sentence was not manifestly excessive. Although sentence had to be imposed for the charged breaches, the judge could take account of the appellant’s repeated convictions for breaching the same order. He had seen the complainant give evidence and had material supporting his assessment of significant psychological harm and fear. Concurrent terms of 12 months’ imprisonment were therefore upheld.

• Court of Appeal (Criminal Division): By [2012] EWCA Crim 2154, dismissed the appellant’s appeals against conviction and sentence.
• Bradford Crown Court: On 2 July 2012, convicted the appellant of two counts of acting in breach of a restraining order and imposed concurrent sentences of 12 months’ imprisonment.