R v Jordan Foote & Ors

A jury may use ordinary aids such as a magnifying glass to examine evidence already properly before it. Such aids differ from equipment designed to enable unsupervised scientific experiments, which is impermissible. The question is whether the jury has conducted an experiment or obtained new evidence, not whether an image has been examined more closely. A speculative possibility of misuse, without particularised evidence, does not make a conviction unsafe. An appellate challenge to sentence must address the sentence actually imposed, viewed in the context of the totality of the offending; comparison with co-defendants is unhelpful where their lead sentences concern different offences.

Jordan Foote, Jabari Fanty and Ricardo Nkanyezi renewed applications for permission to appeal against conviction. Foote also renewed an application against sentence. The convictions arose from a series of firearms and drug offences, including attempted murder and murder.

The common conviction ground concerned a magnifying glass found in the jury room during deliberations, after the jury had been provided with a laptop enabling them to enlarge CCTV images. Nkanyezi additionally challenged the refusal of his submission of no case to answer. Foote argued that his sentence failed to reflect his age, intellectual limitations, role and mitigation, and was disproportionate by comparison with co-defendants.

The Court refused all renewed applications for permission to appeal.

1. Magnifying glass. The court followed R v Maggs (1990) 91 Cr App R 243, treating as permissible the use of a magnifying glass, ruler or tape measure to examine material already in evidence. Equipment required or designed to enable unsupervised scientific experiments in the jury room is impermissible. The observations in R v Stewart and Sappleton (1989) 89 Cr App R 273 concerning a ruler or magnifying glass were obiter and too wide if read as stating a general prohibition.
2. The court considered that R v Asgodom [2012] EWCA Crim 2054 supported the same distinction. A jury does not receive new evidence merely by examining exhibited images more fully in the retiring room. The court also noted that R v APJ [2022] EWCA Crim 942 was to the same effect. The trial judge was therefore wrong to remove the magnifying glass if it had merely been used to enhance images already in evidence. However, the applicants had not particularised any experimentation. The asserted possibility was fanciful, and the conviction ground was unarguable.
3. No case to answer. The trial judge was entitled to conclude that there was sufficient evidence for the murder charge to proceed. That ground was unarguable.
4. Sentence. The sentencing remarks showed that age, maturity, role and mitigation had been considered. Foote’s sentence had to be assessed in the context of the number and seriousness of the offences. The attempted-murder sentence could not properly be isolated from the other offending, and comparison with co-defendants’ attempted-murder sentences was misplaced because their lead sentences concerned murder. The sentence was not arguably manifestly excessive. The court also confirmed, having regard to section 33 of the Sentencing Act 2020, that a pre-sentence report was unnecessary.

• Court of Appeal (Criminal Division): The renewed applications for permission to appeal against conviction and Foote’s sentence were refused. The court endorsed the single judge’s reasons and held the grounds unarguable.