RN v R. (Rev 1)

A trial judge has a discretion to permit a jury to alter a pronounced verdict. The discretion depends on all the circumstances, including the elapsed time, the likely cause of any mistake, and fairness to both parties.

However, a unanimous verdict should not be reopened where there has been a material opportunity for further discussion after it was returned. A correction must be prompt and dealt with before significant further deliberation has occurred, or might have occurred. If the final verdict may have been influenced by later discussion or events, the original verdict must stand.

The appellant was convicted at Durham Crown Court of two offences under section 5 of the Domestic Violence Crime and Victims Act 2004, concerning serious injuries suffered by her infant child. The prosecution relied alternatively on her having caused the injuries or having failed to protect the child from her co-accused.

The jury initially acquitted the appellant on both counts. After the jury had raised concerns that they had not been asked a second question on each count, the judge directed them to reconsider their verdicts. They then convicted the appellant on both counts.

The appeal concerned whether the judge was entitled to reopen the unanimous acquittals and permit the jury to reconsider them.

1. Appeal allowed. The convictions were unsafe and were quashed. The original unanimous acquittals should not have been reopened, so there was no basis for a retrial.

2. Following R v Paul Andrews [1986] 82 Cr App R 148, a judge has a discretion to allow a jury to alter a pronounced verdict. Its exercise requires consideration of all the circumstances, particularly the time elapsed, the probable explanation for the alleged mistake, and justice to both the defendant and the prosecution.

3. The court adopted the caution in Millward [1999] 1 Cr App R 61. An apparently unanimous verdict delivered openly and without dissent should be reopened only in exceptional circumstances. Consistently with R v Peter Tantram and others [2001] EWCA Crim 1364, an amendment is impermissible if there has been a material opportunity for further deliberation which creates a real possibility that the jury changed its mind.

4. Here, the alleged confusion was not promptly and clearly resolved. The appellant had been acquitted on count 2, the jury had continued considering count 1, the appellant was later acquitted on count 1 and the earlier acquittal was confirmed. The foreman was then isolated, so his short note did not clearly establish the view of the whole jury. The jury were sent home and, the next day, were expressly directed to reconsider the appellant’s verdicts before deliberating for a further 27 minutes.

5. The court could not exclude the real possibility that the final convictions were influenced by matters heard or discussed after the original acquittals. The judge should therefore not have reopened either verdict.

• Court of Appeal (Criminal Division): Allowed the appeal in [2020] EWCA Crim 937, quashed both convictions and held that the original acquittals should not have been reopened.
• Crown Court at Durham: The appellant was convicted on 6 December 2019 of two offences contrary to section 5 of the Domestic Violence Crime and Victims Act 2004 and sentenced on 17 January 2020 to concurrent terms of 30 months’ imprisonment.