Hussain, R v

A jury’s expression of uncertainty during deliberations does not, without more, make a subsequent unanimous verdict unsafe. Where the jury is correctly reminded that it must decide the case on the evidence, that the prosecution bears the burden of proof, and that guilt must be proved so that it is sure, the notes may simply reveal an earlier stage of deliberation.

An additional direction distinguishing legitimate inference from speculation is not required where the jury’s concern about possible inference operates in the defendant’s favour and the existing directions adequately require a verdict based on the evidence.

The applicant was convicted at Bradford Crown Court of obtaining a pecuniary advantage by deception. He had stated in an employment application that he had no unspent convictions, although the bank would not have offered him employment had the convictions been disclosed.

His defence was that a recruitment agency had advised him that spent convictions did not need to be disclosed. The central issue was whether he had acted dishonestly when completing the application.

During deliberations, the jury sent notes expressing concern about whether the evidence established dishonesty and whether it could decide guilt on an assessment of character. The judge reminded it of the prosecution’s burden and the need to be sure of guilt. The applicant sought leave to appeal against conviction, contending that the later unanimous verdict was inconsistent with the notes and that a further direction on inference and speculation was required.

1. The application for leave to appeal was dismissed. The court also refused permission to amend the grounds of appeal. Both grounds were without arguable merit.

2. The judge’s response to the jury notes was legally correct. The jury was told that no further evidence would be received, that it must decide on the evidence heard, that the prosecution bore the burden of proof, and that it could convict only if sure of guilt. The direction accorded with the submissions of defence counsel.

3. The notes showed only that one or more jurors had been uncertain at an intermediate stage of deliberations. They did not disclose an inconsistency with the unanimous verdict returned about 30 minutes later, or any other circumstance capable of rendering the conviction unsafe.

4. The first note did not require a further direction distinguishing inference from speculation. Its substance was a concern that there was insufficient evidence that the applicant knew the difference between spent and unspent convictions. Any apparent rejection of possible inferences operated in the applicant’s favour. Although some judges might have clarified the distinction, the existing direction that the jury had to be sure on the evidence meant that the conviction was not arguably unsafe.

5. The application was dismissed under section 20 of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 548, refused leave to amend the grounds and dismissed the application for leave to appeal against conviction.

• Bradford Crown Court: On 9 October 2015, convicted the applicant of obtaining a pecuniary advantage by deception.