McAleer, R v

A conviction is unsafe where a juror obtains and communicates prejudicial extraneous material about the defendant, and the court cannot be sure that it had no effect on the verdict. The common-law protection of jury deliberations does not prevent investigation where non-evidential material may have entered those deliberations.

Unauthorised information about a defendant’s previous violent conviction is potentially highly prejudicial. Where it was not evidence at trial, the jury had no tailored bad-character direction, and the parties had no opportunity to address relevance or use, the resulting irregularity may require the conviction to be quashed and a retrial ordered.

The applicant was convicted at St Albans Crown Court of attempted murder after the prosecution alleged that he deliberately pushed his girlfriend from a fourth-floor balcony. His case was that she fell accidentally and that he lacked intent. He received an extended sentence of 20 years.

After the verdict, evidence emerged that a juror had searched online for information about the applicant and learned of a previous violent conviction. That information was communicated to at least one other juror. The applicant sought leave to appeal and to rely on fresh evidence under section 23 of the Criminal Appeal Act 1968.

The central issue was whether the jury irregularity had undermined the safety of the conviction.

1. Appeal allowed. The court quashed the conviction for attempted murder and ordered a retrial on a fresh indictment.

2. The common-law rule against investigating jury deliberations remained important. However, as recognised in R v Mirza [2004] 2 Cr App R 8 and R v Thompson [2010] 2 Cr App R 27, the rule has a narrow exception where extraneous, non-evidential material may have entered the deliberations. The court could therefore examine the evidence obtained by the police investigation without trespassing into the substance of the jury’s decision-making.

3. A juror had deliberately accessed information about the applicant’s previous conviction for seriously assaulting another person and had communicated it to at least one fellow juror. That material was potentially highly prejudicial in a trial for attempted murder. It had not been adduced by the prosecution, which had not regarded it as relevant or probative, and neither juror received a direction concerning its proper use or heard submissions about its relevance.

4. The court accepted that one juror believed the information had not affected her, but could not be sure that it had not affected her subconsciously, the researching juror, or subsequently the wider jury discussion. Both jurors were in the convicting majority. The irregularity was therefore serious and undermined the safety of the conviction. The comparison with R v Brandon 53 Cr App R 466 confirmed the gravity with which disclosure of a defendant’s previous convictions to a jury is treated.

5. The court ordered a retrial on count 1, directed service of a fresh indictment and continued reporting restrictions under section 4(2) of the Contempt of Court Act 1981 pending the retrial.

• Court of Appeal (Criminal Division) — Allowed the appeal in [2018] EWCA Crim 856, quashed the conviction and ordered a retrial.
• St Albans Crown Court — The applicant was convicted of attempted murder on 20 November 2015 and, on 1 April 2016, received an extended sentence comprising 15 years’ imprisonment and a five-year extension period.