Usman, R. v

A prejudicial remark or gesture by one juror does not automatically require discharge of the whole jury. The trial judge must address the incident on its facts and decide whether, viewed objectively, any real risk of bias or unfairness remains. Discharging the offending juror, reminding the remaining jurors of their duty and obtaining their assurance that they can continue fairly may adequately protect the fairness of the trial.

Where a guilty plea to a lesser count is rejected and the defendant is convicted of a more serious count at trial, a concurrent sentence should not be passed on the lesser count. It should ordinarily lie on the file on the usual terms.

The applicant was convicted after trial of possession of a prohibited firearm with intent to endanger life. During his cross-examination, a juror sang words suggesting that he was lying. The trial judge discharged that juror, questioned the remaining jurors about their ability to continue fairly, and allowed the trial to proceed with 11 jurors.

Following refusal by the single judge, the applicant renewed his application for permission to appeal against conviction. The court also considered a Registrar’s reference concerning a concurrent five-year sentence imposed on a lesser firearm count to which the applicant had pleaded guilty before trial, but whose plea the prosecution had not accepted.

1. The court dismissed the renewed application for permission to appeal against conviction. The judge had been entitled to discharge the juror who had openly displayed prejudice and to continue the trial with the remaining 11 jurors after each confirmed an ability to try the case fairly.

2. The proper question was whether there remained a real risk of bias or unfairness. An objective observer would regard the judge’s response as adequate and fair. The removal of the offending juror also reinforced to the remaining jurors the need to avoid prejudicial conduct.

3. There is no general rule that an expression of prejudice by one juror requires the whole jury to be discharged and the trial restarted. Such incidents are fact-sensitive and require a judicial assessment of the particular event and the effectiveness of the steps taken to remedy it. The court considered R v Kellard [1995] 2 Cr App R 134, but held that the greater seriousness of the present incident did not make discharge of the whole jury necessary.

4. The court corrected a technical sentencing error. The applicant’s plea to the lesser count of simple possession had been unacceptable to the prosecution, and he was convicted of the more serious count after trial. The concurrent five-year sentence on count 5 was quashed and replaced with a direction that count 5 lie on the file on the usual terms. This did not alter the total term of imprisonment.

• Court of Appeal (Criminal Division): The renewed application for permission to appeal against conviction was dismissed. On a Registrar’s reference, the court corrected the sentence by directing that count 5 lie on the file on the usual terms.
• Crown Court: The applicant was convicted after trial of possession of a prohibited firearm with intent to endanger life. A concurrent five-year sentence was imposed on a lesser firearm count, although the plea to that count had not been accepted by the prosecution. The court and citation are not stated in the judgment.