R v Simon Davies & Ors

A trial judge need not investigate or discharge a jury on speculation that jurors may have encountered an advocate’s social-media post. Inquiry is unnecessary where there is no reason to think that the post was seen and it cannot reasonably bear a prejudicial meaning.

Group messaging between jurors about travel or other non-evidential matters is not, without evidence of irregularity, a reason to invoke the formal jury-irregularity procedure. On sentence, the appellate court assesses totality and will not reduce a proper sentence merely because a co-offender may have received a lenient sentence.

Following an eight-week trial in the Crown Court at Stoke on Trent, Simon Davies, Marcus Justin Hughes and Damion Darren Morgan were convicted of conspiracy to launder criminal property. The conspiracies used vehicles operated through a haulage company to transport large quantities of criminal cash.

Davies renewed his application for leave to appeal against conviction. He contended that the trial judge should have investigated, or discharged the jury because of, a social-media post by prosecution counsel and jurors’ use of a WhatsApp group. All three applicants renewed applications for leave to appeal against sentence, challenging culpability, harm, totality and alleged disparity.

1. All renewed applications were refused. Davies’ conviction was safe. The prosecution advocate’s social-media post was unwise, but there was no reason to suppose that any juror had seen it. Even if a juror had seen it, the court rejected the alleged prejudicial interpretation. It was therefore unnecessary and inappropriate to question the jury or discharge it.
2. There was no evidence of jury irregularity arising from the WhatsApp group. Jurors may communicate with one another about matters unrelated to the evidence, including arrangements connected with attendance, provided they obey directions not to discuss the case outside the retiring room. The court was entitled to assume that jurors would follow those directions. Their written assurances gave the judge no basis to demand further inquiry, including inspection of their phones. The formal procedure in Part 8.7 of the Criminal Practice Directions 2023 was not engaged.
3. The sentences were not manifestly excessive. The judge was entitled to assess the scale of the conspiracies and each applicant’s culpability after presiding over the lengthy trial. In assessing Hughes’ sentence, the relevant question was the totality of the concurrent sentences for two separate conspiracies, not the isolated sentence for count 2. The sentence properly reflected overall criminality. The judge had made an appropriate allowance for Covid-related remand conditions.
4. Alleged disparity did not assist any applicant. Differences in role, control, benefit, mitigation and personal circumstances justified different sentences. A potentially lenient sentence for a co-offender did not establish that another offender’s proper sentence should be reduced.
5. By way of guidance, a disclosure ground must identify the alleged legal error or serious procedural defect and explain how it caused unfair prejudice or rendered the conviction unsafe. Renewing an application after refusal by a single judge is not an appeal from that decision. Applicants and advisers must address the single judge’s reasons and should not renew hopeless grounds automatically; the court may make a loss of time order, consistently with R v Tamiz and Tamiz [2024] EWCA Crim 200.

• Court of Appeal (Criminal Division) — in [2024] EWCA Crim 969, refused Davies’ renewed application for leave to appeal against conviction and all three renewed applications for leave to appeal against sentence.
• Single judge of the Court of Appeal — refused the original applications for leave to appeal against conviction and sentence.
• Crown Court at Stoke on Trent — convicted the applicants of conspiracy to launder criminal property and imposed custodial sentences.