Marshall & Anor, R. v [2007] EWCA Crim 35

No: 2005/6292/D4 & 2005/6364/D4[2007] EWCA Crim 35
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 17 January 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE HUGHES
MRS JUSTICE RAFFERTY DBE
SIR CHARLES MANTELL
Between
R E G I N ACrown-v-
Between
JAY MARSHALLROBERT CRUMP
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A GOH appeared on behalf of MARSHALLMR P SUTTON appeared on behalf of CRUMPMR B ALTMAN appeared for CROWN
J U D G M E N T

LORD JUSTICE HUGHES:

These

[1]two appeals against conviction arise because after the end of the trial it was discovered that the jury had had in its retiring room some material which had been downloaded from the internet dealing with the charging of firearms offences and sentencing for such offences, for robbery, and for homicide.[2]The two appellants were convicted at the Central Criminal Court of manslaughter and of possession of a firearm with intent to endanger life. Those two offences arose from a robbery which the first appellant Marshall eventually admitted but the second defendant Crump denied on the basis that although he had taken part he had been acting under duress.[3]It was common ground that on the afternoon of 15th July 2004, and then at around midnight that same night, Marshall and a co-accused, Patterson, committed two robberies. In the afternoon they waylaid an acquaintance called Porter and attempted to rob him of money and drugs. They were armed at the time with a shotgun which on the evidence Patterson initially had in his hands but which Marshall took up subsequently to threaten the victim's father when he tried to intervene. That robbery was largely unsuccessful. The victim escaped and the defendants got away with only his keys. Marshall and Patterson then planned to rob another acquaintance called Spencer who was an old friend of Marshall. They then met the two further co-accused, the second appellant Crump and a fourth man Wilson. Late that night Spencer was invited to Marshall's flat and, whilst he was there with Marshall, Patterson, Wilson and Crump entered the flat. Patterson had the shotgun. There was inevitably no independent witness to exactly what happened after that, but by about 1 o'clock in the morning Spencer, whose hands had been tied with cable ties, had been robbed of some jewellery and had been killed by a shot from the gun. It was agreed at the trial that both Spencer and the appellant Marshall had been tied up, the object being to pass Marshall off as a victim of the robbery to which he had in fact been party.[4]Eventually both Patterson and Marshall pleaded guilty to the first robbery and to having the shotgun on that occasion with the intent to commit an indictable offence. They also both pleaded guilty to the robbery of the dead man, Spencer. Those two, however, contested the count of murder (count 5) and that for possession of the gun with intent to endanger life on the occasion of the second robbery (count 4). Patterson's pleas to those various offences had been tendered before the trial but were necessarily in evidence before the jury. Marshall's pleas came only several days into the trial and were tendered in front of the jury. As to the robbery in which Spencer had been killed, Patterson admitted that he had been holding the gun but said that it had gone off accidentally when the dead man had struggled and put his tied hands on the weapon. Marshall contended in addition that it had never crossed his mind that Patterson would bring a loaded gun to the robbery so that he had nothing to do in any event with the death. Crump and the fourth man, Wilson, as we have indicated, both accepted that they took part in the robbery of Spencer but contended that they acted under duress, being frightened by serious threats which they said had been issued by Patterson.[5]In the event, the jury convicted Patterson and Marshall of manslaughter rather than of murder and those two defendants also of the offence of possession of the gun with intent to endanger life. The jury acquitted Wilson and Crump altogether on count 5 (the count of murder, that is to say both of murder and of manslaughter) and also on count 4 (the firearms count). Those two defendants were convicted solely of the robbery offence in relation to Spencer.[6]Some time after the jury had returned its verdicts and had dispersed, some printed material was found in the room which it had used. It was material which had plainly been downloaded from three internet sites. Some came from the site of the Crown Prosecution Service, some from the site of some solicitors with a criminal defence practice and some from a third Home Office site.[7]The material covered practice relating to the charging and sentencing in firearms cases, sentencing for robbery and sentencing for homicide, including manslaughter, together with mandatory automatic life sentences and extracts from the Practice Direction of 2004 relating to tariffs for specified periods. Printed dates on the pages suggested that the material must have been downloaded on 11th October. That is the day on which the jury had first retired, so the material had been acquired by one of them, it would appear, either that morning in anticipation of retirement or overnight, after the first half day of retirement. In the event, the jury's deliberations lasted all but two full further days. Their verdicts were returned on the afternoon of Thursday 15th October. During that time, the jury on two occasions asked questions of some detail arising from the judge's summing-up. They were about the elements of the offences of murder and of possession of a firearm with intent to endanger life. The learned judge dealt with them impeccably. He discussed them with counsel first and he gave the jury a careful further direction setting out the relevant law for them entirely consistently with the way in which he had explained it initially.[8]There was before this court at one stage an application by Marshall for leave to appeal in relation to the answer to one of those questions, but on mature reflection Mr Goh abandoned that some days ago. The position now is that there is no complaint whatever about the terms in which the jury had the law explained to them, both in the original summing-up and in answer to the specific questions which they raised.[9]As to the material which was found in the jury's room, we have, like this court in R v Karakaya [2005] 2 Cr.App.R 5 at 77 felt able to examine the material. That is because it is wholly extraneous to the deliberations of the jury, having, it would appear, been brought into existence by one of the jurors when not at court. Like this court in Karakaya we cannot know how many of the jurors were shown it. It is necessary to proceed upon the basis that although it may only have been one, it could have been any number of them, but plainly it was at least one. Like this court in Karakaya, we are clear that reference to this material contravened an important principle of jury trial, namely that no further material ought to be considered by the jury once it had retired. This was material that the defendants and their legal advisers did not know about and about which they could not address any arguments to the jury. Nor had the material been made public and a criminal trial takes place in public. When this kind of thing happens it is a matter of considerable concern. On the face of it, it is an irregularity which is very likely to lead to a conviction being held to be unsafe. That was the conclusion of this court in Karakaya.[10]It is no doubt true, as Mr Altman for the Crown has submitted to us, that the material in this case was largely material which was in the public domain and to which an intelligent member of the public serving on the jury could perfectly legitimately have access. That, however, does not necessarily solve the problem. If a jury is known to have access to material in the public domain the judge is in a position to give a warning that they must concentrate entirely upon the evidence which has been given in the case. The jury's use of material which is not known to the judge or to any of the participants in the trial is something which cannot be addressed. That said, the question for this court must always be whether the verdicts which have been returned are in the particular case before it unsafe. That was the question which this court addressed in Karakaya and it is to be observed that at paragraph 18 of the judgment in that case Judge LJ expressly left open the question whether every breach of the principle to which we have referred will inevitably lead a conviction to be unsafe.[11]Karakaya was a very different case from this. There was in that case a very plain reason why the conviction was unsafe, however few jurors might have looked at the downloaded material. The charges there were rape and indecent assault. The material which had been referred to was of a campaigning nature. Its import was to assert the strong position that people were too frequently acquitted wrongly of such offences. It was material of a kind which, if attention were paid to it, might well influence one or more jurors in their verdicts. Moreover, it was accepted that some of it was factually inaccurate and further that it would not have been admissible in the trial.

Judge LJ giving the judgment of this court said of it that:

"In effect the material might have served to undermine the confidence of the jury in the fairness of the summing-up, and the accuracy of the judge's directions of law... We cannot accept that the documents should be approached as if they were no more, or not much more, than an exhortation for an unbiased assessment of the credibility of rape victims."
[12]We have given some rather anxious consideration to the question of the safety of these convictions. If there is any real possibility that the jurors or any of them may have been influenced improperly by this material to convict either defendant of the two offences of which Marshall was convicted or the one of which Crump was convicted, then their convictions would be unsafe. In this case we observe the following factors: 1. The material is about the range of offences which exist and about sentencing. It does seem to us possible that the former element, the range of firearms offences, might have inspired one of the questions which was asked of the judge by the jury - that is to say whether there existed other firearms offences which were alternatives to count 4. That is not necessarily the only explanation for that question. The jury had been told there was an alternative to count 5 (that is to say manslaughter as an alternative to murder) and they could see from the indictment before them that there was another firearms offence of possessing a firearm with intent to commit an indictable offence; indeed Marshall and Patterson had both pleaded guilty to it in relation to the first robbery. But it is at least possible that the material inspired that question. What is significant, however, about this case is that the jury asked the specific question of the judge whom the jury plainly treated, as it should have done, as the only authority on the law. It received the emphatic answer, correctly, that the only question was whether the offence charged in count 4 was proved or not and that there was no alternative verdict. 2. Otherwise the material is about sentencing. It might be possible to envisage a situation in which a jury by referring to material about sentencing for lesser offences could be led towards convicting of a more serious offence because it feared that otherwise sentences might be imposed which were lower than it would prefer to contemplate. This, however, was a jury which acquitted everybody of murder. It convicted Marshall of manslaughter. The material might have led a reader to appreciate that murder carried a mandatory life sentence and manslaughter did not, but that manslaughter might attract either a long term of years or a discretionary life sentence, but we are unable to see how Marshall could have been damaged in the verdict by the fact that the jury might have been aware of that. Nor can we see how the enquiry about alternative firearms offences could have led improperly to the verdict of guilty of manslaughter or, for that matter, of the firearms offence. Crump was convicted of robbery but again it is not possible to see how that could improperly have been brought about by the material available which demonstrated that sentences for robbery might range from upwards of 20 years, down to a few months. We do not regard as realistic the hypothesis that the jury might have thought that it could convict of robbery whether sure of guilt or not, safe in the knowledge that the sentence would be very short indeed. 3. Apart from the question to which we have already referred, this jury made several other enquiries of the judge about the law. That they made them demonstrates that they were turning to judge, as they should have done, for authoritative rulings about the law. 4. This jury returned discriminating verdicts for which there was a very clear basis. Wilson and Crump admitted that they had taken part in the robbery but there was relatively little evidence of knowledge that a gun would be used, still less that it would be either loaded or accompanied by ammunition ready for use. By contrast, Patterson and Marshall had both admitted possessing just such guns, both generally and this particular gun in a robbery a few hours earlier. Patterson admitted carrying it in the second robbery and indeed gave evidence to the effect that both he and Marshall were well aware that it was loaded. The jury resolved the issue of whether the gun had been deliberately fired at Spencer in favour of the defendants by saying that it could not be sure that it had. In the case of the Crump the jury rejected his defence of duress but there was a plain basis for doing so and no part of the content of the material can have had any bearing upon that decision.[13]The appellants perfectly properly take their stand on the fact of the irregularity and the assertion that a verdict in such circumstances is necessarily unsafe. They are entitled so to arguse, and we are grateful for the precision and the brevity of their submissions. But no scenario has been suggested to us, nor as far as we can see can it be, by which these defendants can have been adversely affected by the material which we have seen.[14]It follows that the taking of this material into the jury room was a clear contravention of the important principle to which we have referred. It raises immediately the question of whether the convictions are safe or not, but upon close examination we are satisfied that these are convictions which are safe.[15]We observe, without attempting to prescribe any kind of formula, that the case underlines the importance of the direction which is conventionally given to jurors at the outset of the trial (and was given to this jury) to the general effect that the golden rule which they must apply is to try the case on the evidence alone which is what they hear in court and nothing else. That can, without drawing attention to any particular risks, conveniently be given in a form which reminds them first of the general rule, secondly of its application in a prohibition on discussion of the case with family, friends or anybody else, and quite often conveniently also with a reminder that private research, whether in the library or on the internet, should be abjured.[16]It follows that for those reasons these appeals must be dismissed. (There then followed an appeal against sentence)

LORD JUSTICE HUGHES: On behalf of Marshall, Mr Goh renews his application for leave to appeal against sentence, which application the single judge refused. The sentences which the judge passed were concurrent upon the several offences. The longest of the sentences was 18 years for manslaughter. The robbery of Spencer and the possession of a firearm with intent to endanger life attracted concurrent sentences of 12 years and the first robbery attracted 11 years (also concurrent). There were shorter concurrent terms for the other offences.

[18]Mr Goh's short proposed point is that the 18 years for manslaughter was manifestly excessive. He says that the acquittal on the count of murder means that the jury was not satisfied of either intent to kill or to do grievous bodily harm. That of course, so far as it goes, is correct. Therefore he says, so far as violence goes, the intention of Marshall was limited to an intention to threaten or at most to beat with the weapon. Indeed in his grounds he expresses it as an intention to commit an unlawful act, that is to say a common assault. Of course if the defendant had been convicted of murder the sentence would have been life imprisonment and under the Criminal Justice Act 2003 the specified period would have had as its starting point 30 years, which is equivalent of a determinate sentence of 60 years. However that may be, it is simply not realistic to speak of the intent being limited to common assault. The intention on the jury's verdict was to rob and to endanger life armed with a shotgun which was either loaded or had ammunition readily available for use if required and in consequence the death of the person robbed had occurred. In the event of manslaughter arising from the carrying of the knife without any additional motive for robbery and without any intent to cause grievous bodily harm, the starting point is nowadays in the region of 12 years - see Attorney General's Reference No 33 of 1996 (Latham) [1997] 2 Cr.App.R 9.[19]Given the formidable weapon which was here carried and the intention to use it to effect a robbery within hours of doing the same to someone else, we are quite unable to say that it can properly be argued that the sentence of 18 years is manifestly excessive. In those circumstances we refuse leave.

Cited in 2 later judgments