Abdulqani Hamdan v R

An irregularity in handling a jury note may make a conviction unsafe where it creates a direct conflict between a juror and the defendant on an issue bearing on credibility. The question is assessed objectively. The court must consider whether a neutral observer would have a real concern that the jury might rely on the extraneous matter, despite judicial directions. An appearance of bias is sufficient to make the trial unfair. Strong evidence does not necessarily cure the defect, particularly where an earlier jury failed to reach a verdict.

The appellant appealed against his conviction at Bristol Crown Court for wounding with intent to cause grievous bodily harm, contrary to Offences Against the Person Act 1861, section 18. During his evidence at the retrial, a juror reported having heard him speaking English on the telephone outside court. The judge disclosed the note to the whole jury and asked the appellant about it in the witness box, rather than isolating the juror and investigating the matter with the advocates.

The appellant denied the incident. The prosecution and defence subsequently agreed that the jury should be discharged, but the judge refused. The central issue was whether the irregular handling of the note meant that the appellant could no longer receive a fair trial and whether any resulting conviction could safely stand.

1. Appeal allowed. The conviction was quashed. The court had already allowed the Crown's application for a retrial and given directions for it.
2. The procedure in CPD 26M of the Consolidated Practice Directions 2015, materially reproduced in paragraph 8.7 of the Criminal Practice Directions 2023, required the juror to be quarantined, the note to be shown to both advocates, and appropriate questions to be settled. Depending on the answers, the judge could give a direction, discharge the individual juror, or discharge the jury.
3. The failure to follow that procedure was not the decisive problem by itself. The critical mischief arose when the judge read the note to the entire jury and asked the appellant, while under oath, whether he had been speaking English on the telephone. His unequivocal denial created a direct conflict between the appellant and a juror about what the juror had seen and heard. It also put the appellant's credibility directly in issue on an extraneous matter.
4. Viewed objectively from the perspective of a neutral observer, there would inevitably be a perception, or at least a serious concern, that the jury might hold the conflict against the appellant despite directions to decide the case only on the evidence and to treat lies in accordance with the Lucas direction. An appearance of bias is sufficient to make a trial unfair.
5. The strength of the DNA and other evidence did not make the conviction safe. The earlier trial had resulted in a hung jury, so the court could not be sure that the conviction was safe regardless of the irregularity. The appeal was therefore allowed and the conviction quashed.

• Court of Appeal (Criminal Division): The appeal from the appellant's retrial conviction at Bristol Crown Court was allowed and the conviction was quashed. The Crown's application for a retrial was allowed and directions were given.