R v Jason Smith

A conviction is unsafe where a jury’s deliberations may have been improperly influenced by extraneous material which was not tested in the trial process. The appellate court must investigate the material and assess the fairness of the trial as a whole. Applying R v Thompson [2010] EWCA Crim 1623, the question is whether a fair-minded and independent observer would conclude that the jury, or some jurors, may have been influenced by the material. Clear directions not to conduct research do not cure an irregularity where a juror nevertheless introduces internet research to bolster a view of guilt and reassure wavering jurors.

The applicant was convicted at the Crown Court at Bournemouth of attempted robbery and aggravated burglary. After the jury had returned majority verdicts and been discharged, the foreman reported that a juror had conducted overnight research.

The subsequent investigation established that the juror had researched other aggravated-burglary cases and told fellow jurors that comparable cases had resulted in convictions on less evidence. His laptop also disclosed searches concerning the defendants, including material which might have been perceived as bearing on character. The Crown did not resist the conviction appeal, but sought a retrial.

The central issue was whether the juror’s research and its introduction into deliberations rendered the convictions unsafe.

1. Appeal allowed. The court granted leave, quashed both convictions and ordered a retrial on the attempted-robbery and aggravated-burglary counts.

2. Verdicts must be reached only on evidence heard in court. Where extraneous material enters jury deliberations, the overriding consideration is fairness. Following R v Thompson [2010] EWCA Crim 1623, the court must investigate the material and determine whether it strikes at trial fairness because the defendant had no proper opportunity to address it.

3. A fair-minded and independent observer would conclude that the jury, or at least some jurors, may have been improperly influenced. The juror deliberately researched other cases to reinforce his own view that guilt was established and to reassure jurors who were wavering. He then introduced that material during deliberations. Neither the parties nor the judge had an opportunity to address it or give directions about its use.

4. The trial judge’s clear directions against research, and to decide only on the evidence, did not remove the resulting risk. The court did not infer merely from the other jurors’ failure to report the breach that they had disregarded all directions. It nevertheless remained relevant that the irregularity was not challenged during deliberations and that the investigation left uncertainty about what further material the juror may have shared.

5. The irregularity affected both counts. Although the jury had been directed to consider them separately, the complainant’s credibility and the DNA evidence on count 2 could influence its assessment of his account on count 1. The appeal against sentence consequently fell away. A fresh indictment was directed under the Criminal Procedure Rules; bail was refused; and reporting was postponed under the Contempt of Court Act 1981 pending the retrial.

• Court of Appeal (Criminal Division). Allowed the appeal against conviction, quashed both convictions and ordered a retrial. The appeal against sentence fell away.
• Crown Court at Bournemouth. The applicant was convicted on 15 February 2023 of attempted robbery and aggravated burglary by majority verdicts and sentenced to a total of 12 years’ imprisonment.