R v Komar Ismail Mardan

In a criminal trial, a judge responding to a jury irregularity should follow the structured steps in paragraph 26M of the Criminal Practice Direction 2015. Failure to follow those steps formally does not by itself make convictions unsafe. The appellate court must assess whether the directions caused a real risk of prejudice or unfairness. Where the concern is limited, does not implicate the defendant, and the judge reassures the jury that it has been addressed while inviting any further concerns, a concise response may be appropriate. Further directions can themselves create prejudice by suggesting a connection which the jury had not made. The assessment remains fact-specific.

The applicant was convicted in the Crown Court at Bradford of four counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003, and one count of doing an act tending and intended to pervert the course of justice. He received a total sentence of 11 years’ imprisonment.

He renewed an application for an extension of time of 574 days and for leave to appeal against conviction. The sole ground concerned a jury note stating that men in the public gallery had appeared to watch jurors as they left court. The applicant argued that the judge’s response failed to address possible prejudice, including a possible link between the men and the applicant. The central issue was whether the response created a real risk that the convictions were unsafe.

1. Outcome. The renewed application for an extension of time and the application for leave to appeal against conviction were dismissed. The convictions were not arguably unsafe.

2. Jury irregularity procedure. The seven-step process in paragraph 26M of the Criminal Practice Direction 2015 should have been followed. It requires consideration of juror isolation, consultation with advocates, provisional measures, establishment of the basic facts, further consultation, a decision on the conduct of the trial, and ancillary matters. The process assists the judge in reaching a reasoned decision about the irregularity and the directions to give.

3. Assessment of prejudice. Failure to follow the process formally did not establish a misdirection or unsafe convictions. The court assessed the circumstances as a whole. The note referred to men in the gallery and did not implicate the applicant. There was no evidence that he directed their conduct or that the jury held their actions against him. A further direction expressly linking the observers to the applicant might have introduced a concern which was not otherwise present and could have prejudiced him.

4. Adequacy of the response. The complaint was relatively low grade. The judge reassured the jury that appropriate measures had been taken, invited them to report any further concerns, and had directed them to decide the case only on the evidence and to put emotional reactions aside. No further incident or concern occurred. In those circumstances, a least-said, soonest-mended response was appropriate and sufficient.

5. The court was also satisfied that the delay was not adequately explained. All relevant facts had been known at conviction and afterwards, and no good reason for the lengthy delay had been established.

• Court of Appeal (Criminal Division): The renewed application for an extension of time of 574 days and the application for leave to appeal against conviction were dismissed. The convictions were held not to be arguably unsafe.
• Crown Court at Bradford: The applicant was convicted on 14 April 2023 and sentenced on 28 April 2023 to a total of 11 years’ imprisonment.