KK, R v

Where a jury irregularity arises, the controlling question is whether the fairness of the trial can be preserved. A judge must establish the basic facts and assess objectively whether there is a real possibility of bias. The judge has a fact-sensitive discretion under the jury-irregularity Practice Direction. Enquiries should be sufficient, but need not be maximal where probing risks intruding into deliberations.

Unauthorised internet research and a failure immediately to report it do not automatically require discharge of the whole jury. The court must act on evidence, not speculation, and consider the material, the risk of further misconduct, remedial directions and whether any prejudice can affect the remaining defendants. A properly investigated and contained irregularity may permit the trial to continue safely.

Eleven defendants were tried at Oxford Crown Court for historic sexual and related offences arising from Operation Silk. While the jury were deliberating, juror No. 9 disclosed that he had conducted internet research and discovered that a co-defendant, NK, had previously received a lengthy custodial sentence. The judge discharged that juror and discharged the jury from returning verdicts against NK, but permitted the remaining 11 jurors to continue in relation to the other defendants.

The convicted defendants challenged the safety of their convictions on the basis that the whole jury should have been discharged. HK also appealed his conviction for conspiracy to rape on discrete evidential and direction grounds. Other appellants renewed conviction applications or challenged sentence. The central question was whether the jury irregularity created a real risk of unfairness requiring the remaining jury to be discharged.

1. The common conviction appeal was dismissed. The governing consideration following a jury irregularity is fairness. Applying the objective apparent-bias approach in Porter v Magill [2002] 2 AC 357, the court held that there was no real possibility that the remaining jurors were biased or that the trial had become unfair.

2. The judge had correctly identified the crucial factual issue: what juror No. 9 had told the jury about any defendant. Although concerns about self-incrimination had been overstated, they were subordinate to the duty to establish the basic facts. The Practice Direction did not require the maximum possible inquiry or individual questioning in every case. Particularly once deliberations had begun, inquiry should ordinarily be confined to what is necessary because of the need for caution about investigating deliberations.

3. The remaining jurors had immediately stopped juror No. 9 from discussing the material and made clear that it could not be used. Their failure immediately to report him did not demonstrate a wholesale repudiation of their oaths or establish that they could not be trusted. There was no evidential basis, rather than speculation, for supposing that other jurors had researched the internet or that juror No. 9 had communicated prejudicial information about other defendants. The information concerned NK, against whom the jury was discharged and whose counts raised no cross-admissibility issue.

4. The judge’s remedial steps were sufficient. The subsequent prolonged deliberations and mixed verdicts objectively reinforced the conclusion that the remaining jurors conscientiously decided the evidence before them. The convictions were therefore safe.

5. HK’s conviction appeal was dismissed. There was evidence capable of supporting an inference that the traffic warden in the vehicle knowingly participated in a conspiracy to rape. The judge was entitled to exclude speculative evidence suggesting an identified third party might have been that person, to decline to exclude the identification evidence, and to regard any lack of clarity in the cross-admissibility direction as immaterial. The proposed fresh evidence did not displace issues on dating already explored at trial, so admission was refused under Criminal Appeal Act 1968, s.23.

6. The renewed conviction applications were refused. The admission of AH’s similar-fact bad-character evidence was proper under Criminal Justice Act 2003, s.101. The special verdict procedure adopted for AY did not cause identifiable prejudice. RA’s verdicts were not inconsistent.

7. Sentence. AY’s sentence of seven and a half years’ imprisonment was quashed and replaced with five and a half years’ imprisonment. The court took account of the statutory maximum under the earlier Sexual Offences Act 1956 and the strong mitigation. The other sentence appeals and renewed applications were dismissed.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 1634, the court dismissed the conviction appeals and renewed conviction applications. It allowed AY’s sentence appeal and substituted five and a half years’ imprisonment. It dismissed the remaining sentence appeals.
• Crown Court at Oxford: Before HH Judge Ross, the defendants were tried and convicted on various historic sexual and related offences. Following juror misconduct, the judge discharged the offending juror and discharged the jury from returning verdicts against NK, but continued the trial for the other defendants.