Abstract
Keywords
The appellant had been charged with the offence of fraudulent trading which was alleged to cover a period of 27 months. His trial had proceeded for several days without incident. At the start of the day in question, as had been the case on previous days, jurors had put their phones, smartwatches, laptops, tablets etc. into lockers. When they were sent out to deliberate later that morning, the jury bailiff reminded them that they ought not to be in possession of any electronic device. All of the jurors confirmed that they did not have anything on them. After about an hour or so of deliberating, the jury asked for a break so that they could go outside for some fresh air. The trial judge agreed to its request. When outside under supervision, most of the jurors stood together, with the exception of two smokers who distanced themselves from the others, and a male juror who stood alone. He was observed by the bailiff to be on his mobile phone. When reminded by her that jurors ought not to be in possession of their phones during deliberations and asked why he had not surrendered it at the beginning of the day, the juror explained that he had earlier denied being in possession of it because it was turned off. Whilst the jurors were climbing the stairs to return to the deliberation room, the male juror was still on his phone. The jury bailiff sought advice from the trial judge in respect of the matter. She subsequently advised the jury to continue their deliberations and emphasised the importance of surrendering any devices still in their possession. In addition to the juror's phone, another juror's iPad was also handed in.
A note was sent to the juror by the trial judge for the purpose of making sure that no irregularity had occurred. It asked him whether he had discussed the case with the person he was speaking to on the phone, and to identify that person. The juror replied that he had been speaking to his wife and that he had not discussed the case with her. Later that afternoon, in the absence of the jury, the trial judge explained to counsel what had transpired. She indicated that in light of the juror's responses to her questions, she was ‘not concerned overly that anything could have taken place to prejudice their deliberations’. She also made it clear that she was now informing counsel as to the events ‘in case you wanted it to go further’. After some discussion, counsel agreed that the judge did not need to make any further enquiries.
The jury returned its verdict later that afternoon, finding the appellant guilty of the fraudulent trading offence. His appeal against conviction rested on a single ground; that the events described above constituted a serious material irregularity in the trial process such that his conviction was unsafe.
Commentary
Introduction
When a juror is sworn in, they take an oath or affirm that they will try the case solely on the basis of the evidence presented in court. Whilst they do not also swear to forsake social media and the internet during the course of the trial, using electronic devices to discuss the case or to carry out their own researches into the defendant or the relevant law is patently at odds with their obligation as a juror and may amount to a contempt of court. Thus, as Lord Judge CJ observed in R v Thompson and others [2010] 2 Cr App R 27: Jurors need to understand that although the internet is part of their everyday lives, the case must not be researched there, or discussed there (for example on social networking sites), any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court (at [12]). If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision-making body … the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict (at [24]).
A Failure to Follow the Criminal Procedure Rules?
At the time of the trial in Parker, the 2015 version of the CPD were in force. These have since been replaced by the CPD 2023 which came into force on 29 May 2023. In both versions of the Directions, a seven stage or step procedure is to be followed once a trial judge has been made aware of a jury irregularity. Thus, the judge must: (i) consider isolating juror(s); (ii) consult with advocates; (iii) consider appropriate provisional measures; (iv) seek to establish basic facts of jury irregularity; (v) further consult with advocates; (vi) decide what to do in relation to conduct of trial; and (vii) consider ancillary matters (contempt in face of court and/or commission of criminal offence).
Counsel for the appellant rightly contended that it was unclear whether step 1 had been complied with (on the facts it had not), and that step 4 was undertaken prior to step 2. It was therefore submitted that since the correct procedure had not been followed, had the juror used his mobile phone to research the evidence, he might have introduced information into the jury deliberations which had not been heard in court. As Thirlwall LJ noted, counsel had ‘candidly admitted’ (at [31]) that he ought to have asked for further investigations at the time of the trial rather than accept that they were unnecessary. Before the Court of Appeal, he went further in suggesting that the juror's phone ought to have been interrogated to discover whether he was telling the truth when he said that he had phoned his wife. In the judgment of the Court, however, there was no need for further investigation since it was satisfied that it had ‘all the information about the juror and his conduct to deal with this appeal today’ (at [31]).
It was apparent from the facts of Parker that not only did the trial judge not follow the CPD procedure, she also failed to even refer to it. On any analysis, this was a significant oversight. It is not unreasonable to assume that a trial judge faced with the present circumstances would have been quick to consult the guidance provided in the CPD unless, that is, they were readily familiar with its content. Even then, it would be prudent to double-check. In the judgment of the Court of Appeal, the ‘most striking omission’ was the trial judge's ‘failure to inform counsel of the information that had come to her notice and to seek their submissions as to the way forward’ (at [34]). Had she done this then, as the current CPD explains, it would have provided counsel with the opportunity to make ‘submissions about appropriate provisional measures (Step 3) and how to go about establishing the basic facts of the jury irregularity (Step 4)’ (paragraph 8.7.7).
Despite the procedural error in the way that the jury irregularity issue was approached, the appeal in Parker failed. The justification for its rejection lies in what is now paragraph 8.7.3 of the CPD, which states: ‘The primary concern of the judge should be the impact on the trial’. Crucially, the Court of Appeal was of the unanimous view that the juror's use of his mobile phone had no impact on the trial.
Section 15A of the Juries Act 1974
This provision was added to the 1974 Act by s.69 of the Criminal Justice and Courts Act 2015 as from the 13th April 2015: see art.3 of the Criminal Justice and Courts Act 2015 (Commencement No.1, Saving and Transitional Provisions) Order 2015, SI No.778. It gave effect to a recommendation made by the Law Commission in its report Contempt of Court (1): Juror Misconduct and Internet Publications (LAW COM No 340), HC 860 (9 December 2013), at paras.5.57 and 6.29. Under s.15A(1), a judge has a discretionary power to order that the members of a jury surrender any electronic communications devices for a ‘period’. For the purposes of the provision, an ‘electronic communications device’ is one which has been designed or adapted for a use involving the sending or receiving of signals which are transmitted via an electronic communications network (s.15A(7)). It would therefore include all of the devices which the jurors in Parker surrendered at the beginning of each day of the trial. Section 15A(3) elaborates on the meaning of the word ‘period’ in the present context. Thus, the surrender of electronic communications devices is confined to those occasions when the jurors are in the building where the trial is taking place, or in other accommodation provided at the judge's request, or carrying out a scene visit in accordance with arrangements made by the court, or travelling to or from either the other accommodation or the scene (s.15A(3)(a)-(d)). A juror going home at the end of the day would therefore have access to their electronic devices since they would be beyond the reach of a s.15A order.
Section 15A(2) imposes a limit on the present power in that a judge may only make an order where they consider that it is necessary or expedient in the interests of justice, and that its terms are a proportionate means of safeguarding those interests. Where a s.15A order is in place a juror commits a contempt of court if they fail to surrender an electronic communications device (s.15A(4)), unless the non-surrender falls within the scope of an exception specified in the order itself. In Parker, it was evident from the facts that two jurors were in possession of devices (a mobile phone and an iPad) falling within the scope of s.15A when they ought not to have been. It might be thought, therefore, that both were in contempt of court. Whilst this submission was initially made on behalf of the appellant, it was later ‘rightly abandoned’ in the judgment of the Court of Appeal. The fatal flaw in the argument was that the daily surrender of devices in Parker was a reflection of what the Court of Appeal referred to as ‘entirely normal procedure’ which was intended to ‘avoid any difficulty or any suggestions arising of misuse of electronic devices while the jury are in the court building’ (at [26]). Importantly, it had not taken place in accordance with a s.15A order issued by the trial judge. Thus, on the facts, ‘section 15A was of no application’ (at [25]). We must therefore continue to wait for the first reported decision relating to the application of this relatively new provision.
Conclusion
The decision in Parker serves as a useful reminder that not every jury irregularity will result in a successful appeal against conviction, and that this may be so even where it is accepted that the matter was not handled in the way set down in the CPD. Whilst the Court of Appeal's judgment stops short of voicing overt criticism of the trial judge, it does conclude with the general observation that ‘all judges, no matter how experienced, would do well to familiarise themselves with the new version of the CPR’, and that the Court commended ‘the new Crim PD 8.7 which sets out seven steps under the heading “Jury Irregularities”’ (at [38]). Of course, had the juror used his phone to look for information relating to the trial, or to speak to his wife or another about how the jury deliberations were progressing, the trial judge would in all likelihood have dealt with the matter rather differently since in either circumstance, the irregularity would have been likely to have had an impact on the trial. Whilst s.15A of the Juries Act 1974 did not apply in Parker, there is nothing in the wording of the provision to suggest that the making of an order can only occur at a certain stage of the proceedings. Accordingly, whereas a s.15A order is most likely to be made at the start of a trial as a precautionary measure, it might alternatively be made at a later stage of the proceedings as a reaction to events, such as where the possession of an electronic device has come to the attention of the judge, and it is no longer felt that voluntary surrender is sufficient to prevent a jury irregularity from occurring.