Baybasin & Ors, R v

Balloting jurors by number rather than name does not of itself render a criminal trial unfair where the defendant’s right of challenge is preserved and the jury is given an innocuous explanation of the procedure. Arrangements for transport or refreshments do not imply special jury protection where they are presented as ordinary trial arrangements.

Local Crown Court practices require objective justification and should be considered centrally. A post-verdict allegation of jury misconduct should ordinarily not prompt an inquiry unless supported by strong and compelling evidence. In sentencing an uncompleted large-scale drug-importation conspiracy, the absence of an importation is relevant mitigation, but must be weighed against the intended harm.

The appellants were convicted at the Crown Court at Liverpool of conspiracy to import cocaine, with one also convicted of concealing criminal property. Other applicants had pleaded guilty to related drugs, criminal-property and false-document offences. The trial concerned alleged large-scale and organised drug trafficking involving groups in London, Liverpool and overseas.

The conviction appeals alleged that Liverpool’s practice of balloting long-trial juries by number, together with related arrangements, was unlawful and that jurors had accessed extraneous material. The court also considered renewed applications for leave to appeal against sentence, including challenges based on the scale of the conspiracy, totality, disparity and apparent bias.

1. Conviction appeals. Leave was granted on the jury-balloting ground, but the conviction appeals were dismissed. The court followed R v Comerford [1998] 1 Cr App R 235: balloting by number did not affect fairness where the defendants’ right to challenge was preserved. The right to inspect the panel under section 5(2) of the Juries Act 1974 meant that right was not impaired. The explanation that number-balloting and transport arrangements were normal in long Liverpool trials did not invite the jury to draw an adverse inference against the defendants.

2. Special protection measures may require a clear warning that they must not be held against an accused. The arrangements in this case were materially different. Refreshment and transport arrangements neither suggested special protection nor impaired trial fairness.

3. The allegations that jurors had read material about drug dealing, researched the defendants online, or discussed the value of a defendant’s house failed on the facts. The court accepted the evidence of the relevant jurors and rejected the principal allegation as unreliable. It added that a complaint first made after verdict is ordinarily a powerful indication against investigating jury conduct. In the absence of other strong and compelling evidence, the verdict’s finality should be accepted.

4. Local practice. The court observed that the Crown Court is one court and that local procedural practices require an objectively justifiable local basis. Proposed local practices should be referred to the Lord Chief Justice’s office before implementation.

5. Sentence applications. All renewed applications for leave to appeal against sentence, and the related applications for extensions of time, were dismissed. The judge was entitled to treat the conspiracy as highly organised trafficking on a vast scale. Although no drugs were imported, that factor was mitigation only and had to be balanced against the harm intended. The court found no sentence wrong in principle or manifestly excessive, and rejected the apparent-bias allegation concerning the single judge.

• Court of Appeal (Criminal Division)—in [2013] EWCA Crim 2357, granted leave on one conviction ground but dismissed the conviction appeals; dismissed all renewed sentence applications and applications for extensions of time.

• Crown Court at Liverpool—following an eight-week jury trial, convicted Baybasin, McMullen and Molloy of conspiracy to import cocaine; Baybasin was also convicted of concealing criminal property. The other applicants had entered guilty pleas to related offences.