Stringfellow, R v [2008] EWCA Crim 2825

[2008] EWCA Crim 2825Case No 2007/6508/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 6 October 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE TUGENDHAT
HIS HONOUR JUDGE GILBERT QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DAVID STRINGFELLOW
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Taylor appeared for AppellantMr M Aldred appeared for Crown
J U D G M E N T

LORD JUSTICE MOSES:

[1]The issue in this appeal relates unfortunately to the taking of the verdict following a trial at Snaresbrook Crown Court. If the correct procedures are followed and everyone is attentive at that tense moment when a verdict is taken the sort of problems that have arisen in this case ought not to arise. There had been a trial of this appellant, Mr Stringfellow on a charge of conspiracy to supply a controlled class A drug. The verdict was taken on 13th July 2006. The appellant was sentenced to 16 years' imprisonment. It was therefore a very serious case in which it was alleged that this appellant was involved in the importation and delivery of a very large amount of pure cocaine. The arrest and subsequent alleged conviction of this appellant came after the drugs had been watched being driven in a lorry in this country.[2]But the facts of this case do not matter since the essential question was whether the jury convicted this appellant by a majority or unanimously. The industry of Mr Taylor, who was not present at the trial, on behalf of this appellant has made the principles which apply in relation to the taking of a verdict plain. Those principles are well-known and stem from the provisions of section 17 of the Juries Act 1974. It is plain that where the jury give a majority verdict it is no acceptable verdict unless the foreman of the jury makes clear in open court the number of jurors who agreed to the verdict of guilty and the number of those who dissented - see section 17(3). To that end there is a clear procedure set out in the Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2903 to 2904.[3]In the instant case it is contended that this court cannot be sure whether the verdict was unanimous or not. It is further contended that the verdict may well have been by a majority and in those circumstances accepted that the jury did not say how many had agreed on a verdict of guilty and how many dissented. Thus the essential question before us is whether the jury was unanimous.[4]The matter arises as recorded in the transcript. We must here record the appreciation of this court to the conscientious way in which Mr Taylor has examined what happened in court. The original transcript was not accurate. By dint of his having listened again we now have an agreed and more accurate description of what happened. The clerk of the court failed to follow the correct procedure and it is undoubtedly that which led to the errors which arose. Had the correct procedure been followed we have little doubt that the problems apparent in this case would not have occurred. We would therefore stress the importance that where, understandably, a clerk may from time to time go wrong in the tension of the moment of taking a verdict, it is far better that one or both counsel interrupt and draw that to the judge's attention, or indeed the judge himself takes it upon himself to ask the clerk to take a deep breath and start again.[5]The first question that he asked was:
"Members of the jury, have at least ten of your number agreed on your remaining verdicts?"
We pause to say that that does not follow the requirements of the cue cards given to the court clerks. The first question should have been:
"Please answer my first question either 'Yes' or 'No'."
The failure to follow that procedure led to an error straightaway because in answer to the question:
"... have at least ten of your number agreed on your remaining verdicts?", the foreman replied: "
A majority have". The clerk continued:
"Please answer my next question. Do you find the defendant David Anthony Stringfellow guilty or not guilty of conspiracy to supply a control drug of class A? THE FOREMAN: Guilty. THE CLERK: Guilty. Is that the verdict of you all or by a majority? THE FOREMAN: By a majority. THE CLERK: By a majority. How many of you agreed? THE FOREMAN: Oh, sorry ['all' or 'oh' (indistinct)] All of us agreed. THE CLERK: The verdict was unanimous. All 12 of you agreed? THE FOREMAN: Yes. THE CLERK: Thank you. You may all sit down."
[6]It is thus not difficult to see how the essential foundation of this appeal arises. Mr Taylor correctly points out that the very first response to the incorrect question from the clerk, namely "Have at least ten of your number agreed on your remaining verdicts", was that the verdict was a majority. By the end of the exchange when the foreman had said that the jury were unanimous, the clerk confirmed that and the foreman affirmed that confirmation. But the foreman had already twice said that the verdict was by a majority and had not dissented, at first, when the clerk said "By a majority". In those circumstances, Mr Taylor submits that this court cannot be sure, as it must, that the verdict was unanimous. Once this court is in the position of not being sure that the verdict was unanimous, this was an unlawful verdict. Not only the statute but the House of Lords in R v Pigg (1983) 76 Cr.App.R 79 support the proposition that it is a requirement of a lawful verdict that the jury say how many agreed and how many dissented (see the speech of Lord Brandon between pages 85 and 86).[7]In order to resolve the all important question, therefore, we have to be sure that the verdict was unanimous. It is important, as Mr Aldred reminded us, to look at those responses, triggered as they were by the failure to follow the correct procedure, in the context of the giving of the verdicts as a whole. We must record that the jury returned to give the impugned verdict at 12.43 after a lapse of 11 hours and 46 minutes during their deliberation. But that was less than an hour before they had returned unanimous verdicts at 11.46 in respect of two co-defendants. Once they had returned two unanimous verdicts, the judge asked them to continue their deliberations and gave them a conventional and correct majority verdict telling them that he was able at that stage to accept a verdict which was not the verdict of them all but of at least 10. He made it clear, as the conventional direction states, that they should continue to seek to reach a unanimous verdict and only return a majority verdict if they were unable to do so. Less than one hour later they came back.[8]As a result of the incorrect direction from the clerk to confine their answer to 'yes' or 'no', the first answer of the foreman was that it was a majority verdict. Quite what she meant by that may never be known. Mr Aldred suggests that she thought that once a majority direction had been given the verdict fell into a category of majority verdict. Whether that be right or not seems to us not to matter. The real question is whether we can be sure that the foreman corrected what she had earlier said. Twice she said it was a majority.[9]Immediately after, when the clerk had repeated that the verdict was a majority, he asked how many were agreed. We are sure that the foreman at that stage, of her own motion, sought to correct that which she had earlier said. There is no other explanation for the apology, the "Oh, sorry". After the question "How many of you agreed?" the answer was clear: All of them had agreed upon the verdict of guilty. That explains the correction that the foreman sought to make. The clerk then confirms that:
"The verdict was unanimous. All 12 of you agreed?"
Response: "Yes", without any dissent then or afterwards. Of course, it would have been better had the matter been clarified, but it seems to us and must have been apparent to all counsel who were present at the time as well as to the judge, that by the end there was, as a result of the correction of the foreman, no ambiguity. All 12 of that jury had agreed upon the verdict.[10]Sensibly, Mr Taylor draws to our attention the very ambiguity in the answer "All of us agreed". He says that is equally consistent, or at least there is more than a fanciful possibility that that is consistent, with the foreman saying that all of the majority had agreed and there is a precedent for that, for example, in the case of Millward [1999] 1 Cr.App.R 61. Furthermore, as Farquharson LJ made plain in that case, it is not for this court to seek to discover what the jury really meant in a case where there is an ambiguity. But, in our view the response to that submission lies in the very correction the foreman advanced. "All of us are agreed" might be ambiguous but was certainly not ambiguous once the jury foreman had made plain that she wished to correct something that she had said earlier. The only thing that she must have been seeking to correct, once she was asked about numbers, must have been her use of the word "majority". In the context of the earlier direction as to majority we can well understand how the mistake arose and why it was that the foreman felt it necessary to make a correction.[11]In those circumstances, despite the clear and forceful submissions of Mr Taylor, we are satisfied so that we are sure that this was a unanimous verdict and accordingly the appeal is dismissed.