R v Christopher Kyei & Anor

Alleged jury misconduct will not make convictions unsafe without sufficient evidence of an irregularity affecting deliberations or decision-making. A forewoman’s disclosure to a partner of the identity of the case being tried, even if contrary to the judge’s instructions, is insufficient where there is no evidence that deliberations, jurors’ views or votes were disclosed, or that the partner’s views or research reached the jury. A partner’s social-media post during deliberations must be assessed in that evidential context; timing and content alone do not establish irregularity. Evidence from fellow jurors that they acted independently on the trial evidence and were not influenced by outsiders is material. Leave to appeal was refused.

Following a trial at the Central Criminal Court before His Honour Judge Katz KC, Courtney Ellis was convicted of murder, attempted murder and perverting the course of justice. Christopher Kyei and Ellis were each convicted of perverting the course of justice. The convictions were returned on 19 January 2024.

After the trial, comments were posted on Kyei’s Instagram account by the partner of the jury forewoman. One appeared to have been posted during the jury’s deliberations and another after the verdicts. The applicants alleged that the forewoman had discussed the case with her partner, that external information or views had reached the jury, and that the verdicts were unsafe. They also sought to introduce fresh evidence concerning juror conduct under section 23 of the Criminal Appeal Act 1968.

The police investigated the matter. The other jurors reported no improper conduct or external influence and said that they had reached their verdicts independently. The central issues were whether a jury irregularity had been established, whether further investigation or evidence was required, and whether the convictions were reasonably arguable to be unsafe.

1. Disposition. The Full Court refused both applications for leave to appeal against conviction. It was satisfied that the applicants had received all relevant disclosure and that the prosecution investigation was thorough.
2. Separate evidential ground. The proposed ground concerning the admission of messages relating to “K-Koke” had not been renewed and was not before the court. In any event, the court upheld the single judge’s view that whether to discharge the jury was a matter for the trial judge’s discretion. The questioning had not entered prohibited territory and any proper concerns could be addressed in directions. There was therefore no viable argument that discharge was required.
3. Alleged jury irregularity. The court assumed in the applicants’ favour that the first Instagram comment had been posted while the jury was deliberating. The posting by the forewoman’s partner was unfortunate and properly merited investigation. However, there was no evidence that it resulted from discussion of the case between the forewoman and her partner. It was possible that she had told him which case she was trying, but that disclosure was unsurprising and undamaging, even if it technically breached the judge’s instructions.
4. There was no evidence that the forewoman had disclosed statements, opinions, arguments or votes from the deliberations, or that information or views obtained by her partner had been relayed to the jury. The evidence from the other jurors was unanimously that they had seen no improper conduct, had not been approached or influenced by any third party, and had reached their verdicts independently on the evidence presented at trial.
5. Viewed as a whole, the evidence showed that the integrity of the trial process and the jury’s deliberations remained intact. There was insufficient evidence to conclude that an irregularity had occurred such that it was reasonably arguable that the convictions were unsafe.

• Central Criminal Court: Following trial before His Honour Judge Katz KC, the applicants were convicted. The convictions were returned on 19 January 2024.
• Court of Appeal (Criminal Division): A single judge refused leave on a separate ground concerning the admission of messages and referred the alleged jury-irregularity ground to the Full Court. The Full Court refused the applications for leave to appeal.