Mole, R. v

A jury bailiff must not answer a jury’s substantive request for judicial guidance or intervene in deliberations. Apart from administrative matters and the limited matters permitted by the oath, communication with a deliberating jury is reserved to the judge.

An unauthorised intervention which prevents a jury’s note reaching the judge, comments on unanimity or majority verdicts, and affects deliberations is a serious irregularity. It compromises open justice and renders the verdict unsafe. The breach cannot be treated as technical merely because a majority verdict might later have been available.

The rule excluding post-verdict evidence of matters intrinsic to deliberations does not prevent the court from examining an extrinsic procedural irregularity proved by the bailiff’s own account.

The appellant was unanimously convicted of affray at Truro Crown Court on 19 December 2012. He received a 12-month community order with a curfew requirement. The appeal concerned events after the jury retired.

A juror later alleged that she had agreed to the unanimous guilty verdict only because an usher had said that the jury would have to remain until all agreed. The jury bailiff’s own note recorded that he had read a proposed note stating that the jury was 11 to 1 on the appellant and seeking guidance. Instead of sending it to the judge, he told the jury that they had been asked to reach unanimous verdicts and that the judge would normally decide when to give majority directions.

The central issue was whether that communication made the conviction unsafe, notwithstanding the restriction on post-verdict inquiry into jury deliberations.

1. Appeal allowed. The conviction was quashed. The court declined to order a retrial.

2. The jury bailiff’s oath, read with the guidance in the Crown Court Manual, required strict observance. Save for administrative or logistical matters unrelated to the substance of the trial, a bailiff could speak to a deliberating jury only at the court’s direction or to ask whether it had agreed a verdict or wished to return to court. The bailiff initially acted properly by saying that he would take the note to the judge. He crossed the prohibited line when he read the note and commented on unanimity and the possible timing of a majority direction.

3. The jury had sought the judge’s guidance, not the bailiff’s. The bailiff wrongly interposed himself between judge and jury, pre-empted the judge’s decision on the information in the note, and affected the jury’s conduct. The court rejected the submission that the irregularity was merely technical because a valid majority verdict might ultimately have been returned. A communication touching the substance of the case in the retiring room defeats the protection of open justice, since it is neither made in court nor recorded. The necessary formalities for a majority verdict under the Juries Act 1974 had also not been observed.

4. The court did not decide the appeal by accepting the juror’s account of deliberations. The bailiff’s own note established an extrinsic procedural irregularity. That inquiry was therefore consistent with the common-law rule, affirmed in R v Mirza [2004] 1 AC 1118, which excludes post-verdict evidence about matters intrinsic to deliberations.

5. The intervention was a very serious irregularity that rendered the verdict unsafe. Given the age of the allegation, the time since trial, and the community order and curfew already served, the interests of justice did not require a retrial.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 2420, allowed the appeal against the conviction for affray, quashed the conviction and declined to order a retrial.
• Crown Court at Truro: On 19 December 2012, convicted the appellant unanimously of affray. On 20 December 2012, imposed a 12-month community order with a curfew requirement.