APJ v REGINA

Save for an uncontroversial communication unconnected with the trial, a jury’s note during retirement must ordinarily be disclosed to counsel and answered in open court after the jury has been recalled. This applies even where the jury seeks an exhibit. If prior arrangements permit an exhibit to be sent in without recalling the jury, counsel must still be told of the request.

An exhibit admitted at trial does not become new evidence merely because the jury later inspect it. However, where a jury’s request shows that it may draw conclusions beyond the evidence, the judge must give directions identifying the evidential limits and prohibiting speculation. A failure which creates a real risk of unjustified conclusions on a central issue may render the conviction unsafe.

APJ v REGINA appealed against a Central Criminal Court conviction for murder. He had admitted unlawful killing and relied on diminished responsibility. A central issue was whether his psychosis was caused solely by voluntary steroid misuse.

During deliberations, after a majority direction, the jury sent a note asking to see steroid vials and to know their size or volume in order to assess how much remained. The judge neither disclosed the note to counsel nor gave a further direction. The vials, which had been admitted as exhibits, were sent to the jury in a sealed bag.

The appeal concerned whether this procedure was a material irregularity and, if so, whether it made the murder conviction unsafe.

1. Appeal allowed. The murder conviction was unsafe and was quashed. A retrial was ordered at the Central Criminal Court.

2. The court reaffirmed the guidance in Gorman [1987] 1 WLR 545. Except for an uncontroversial communication unconnected with the trial, a jury note must in almost every case be disclosed in open court and counsel should have an opportunity to assist. Under Criminal Procedure Rules, r 25.14, the jury should ordinarily be recalled so that its question can be answered in open court.

3. That procedure generally applies where a jury asks for an exhibit. If arrangements were made before retirement for an exhibit to be supplied on request, recalling the jury may be unnecessary. Counsel must nevertheless be told of the note before the exhibit is sent in, both to raise any issue and to ensure that the correct item is provided.

4. The vials were not new evidence. They had been produced and exhibited at trial, and their later physical inspection did not alter that status. The cases concerning material never admitted in evidence, or an experiment not conducted at trial, were therefore inapposite.

5. However, the note did more than request an exhibit. It showed that the jury wished to use the vials to assess steroid use and possible dishonesty, a critical issue. The judge should have directed the jury on the absence of evidence about the vials’ original contents, the quantity remaining when acquired, and the duration of possession, and should have prohibited speculative comparisons or tests.

6. The general written warning against experiments did not cure the defect. Sending the vials without a tailored direction could have appeared to authorise the proposed use. There was a real risk of adverse conclusions not justified by the evidence, and the court could not be satisfied that the irregularity made no difference. A fresh indictment was directed, with arraignment within two months.

• Court of Appeal (Criminal Division): Allowed the appeal in APJ v REGINA [2022] EWCA Crim 942, quashed the murder conviction, and ordered a retrial.

• Central Criminal Court: The appellant was convicted of murder by a 10–2 majority and sentenced to life imprisonment with a minimum term of 23 years, less time spent on remand.