Zulhayir, R. v [2010] EWCA Crim 2272

[2010] EWCA Crim 2272Case No 201001044 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 28th September 2010
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE EADY
MRS JUSTICE COX DBE
v
Between
ONUR KEMAL ZULHAYIRComputer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Mr D Bentley appeared for AppellantMr P Clark appeared for CrownJ U D G M E N T

LORD JUSTICE HOOPER:

We

[1]are against you, Mr Clark. This appeal against conviction succeeds. Do you want a new trial?[2]MR CLARK: I am instructed to seek a re-trial, my Lord. I ask that the proper consultations be made. The officer in the case, Detective Constable Faulds, is in court. In fact, she has spoken with the complainant and the complainant has expressed not only considerable distress at the mere fact of an appeal, be that as it may, but she has expressed reluctance to take part in a re-trial if your Lordships order one. However, I am instructed to seek a re-trial so that the matter can be further canvassed with her.

LORD JUSTICE HOOPER: You say the officer is in court.

[4]MR CLARK: She is, my Lord, yes.

LORD JUSTICE HOOPER: Just a come a bit further forward. Come and sit behind counsel.

[6]That is what you ask for. Mr Bentley, you oppose it?[7]MR BENTLEY: My Lord, the interests of justice -- I am going to invite you to --

LORD JUSTICE HOOPER: This is a stale case.

[9]MR BENTLEY: It is a stale case. He has served half the sentence already, or more than half of it. Not only is it stale, but the other difficulty is that not only is the complainant unhappy to go through the matter again, but we are going to have an immense practical difficulty that the jury will not be asked to re-try the rape count, which is at the moment a central part of her ABE interview. With all due respect, the way my learned friend has put it, he says he is instructed to ... I think perhaps that tells us enough. I would invite you to say that this case should end here. (The bench conferred for a short time)

LORD JUSTICE HOOPER: We shall not order a re-trial.

[11]I would like to address the officer. You have heard that we are going to allow the appeal, quash the conviction and not order a re-trial. We obviously would like you to speak to the complainant and tell her that is our decision, rather than hearing it through the grapevine, so if you could do your best to tell her, we would be grateful.

LORD JUSTICE HOOPER:

[12]On 25th January 2010, in the Crown Court at Snaresbrook before Her Honour Judge Hughes, the appellant was convicted by a majority of ten to two of three counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960. They were counts 2, 3 and 4. He was subsequently sentenced to two years' imprisonment, that sentence being passed on 12th March 2010. He was acquitted of a count of rape, and we say no more about that. The sole ground of appeal on which leave was given relates to an issue of alleged jury bias.[13]In 2001, when the complainant was 13 years old, she moved in temporarily with her grandparents. At that address the appellant, her uncle, also lived. In January 2009 the complainant reported that she and the appellant had engaged in a "consensual" sexual relationship for some months in 2001 and 2002. At that time, as we say, the complainant was about 13 and the appellant in his early thirties.[14]The indictment had originally charged offences of indecent assault, but in the light of the judgment of the House of Lords in J [2005] 1 AC 562, those counts were removed from the indictment and the appellant faced trial solely on the indecency with children charges and the rape.[15]It is not necessary to go into the facts of the case in any detail at all. It is sufficient to say for the purposes of this judgment that the appellant is of Turkish origin and that the extended family, as was shown at the trial, was not a happy family. That came out during the trial.[16]At the opening, after the jury had been sworn, the judge gave a direction to the jury along the lines of paragraph 5 in Chapter 2 of the Crown Court Bench Book March 2010. We do not have a precise transcript of what she said to the jury, but it comes clear from later passages in the transcript that she did give that direction. The effect of that direction is that the jury must try the case on the evidence and that, should any juror have concerns at any time during the trial, including during their retirement, about any aspect of his or her jury service which are sufficiently important to draw to the judge's attention, the juror should sent a note to the judge via their usher or bailiff as soon as possible. The jury are also to be told that concerns of this kind expressed after the trial is over will be too late for the judge to assist. That direction came about as a result of the decision in R v Mirza; R v O'Connor [2004] UKHL 2 and was followed by a practice direction ([2004] 1 WLR 665) telling judges of their obligation to include something along these lines at the outset of the trial.[17]The appeal concerns two notes from the same juror. Unfortunately, neither of the notes is dated and timed. This is not the first time that this court has had to grapple with jury notes which, at least in the form that they are presented to us in the Court of Appeal, are not dated and timed. We urge those responsible for the administration in Crown Courts to make sure that jury notes are dated and timed, with any other relevant details.[18]The first note as we shall call it, came to the trial judge on the first day of the trial, which was a Monday. Although not timed, it appears from later passages in the summing-up that that note was written after the warning, the contents of which we have just outlined. Mr Clark, who appears for the respondent, accepts that to be the case on the evidence that is available to us. That note read as follows:
"I write to express my concern about views expressed by one of our members concerning his pre judgment of the defendant and in particular his ethnic background. We have not heard any evidence yet and feel we should only discuss matters once we have heard all the evidence." (Emphasis added)
Most unfortunately, the judge did not show that note to counsel. Her failure to do so is accepted as wrong by Mr Clark, for the respondent. She kept it to herself and counsel only learnt about it the following Monday. They learnt about it in these circumstances. At some stage on Friday afternoon that same juror sent a second note. That note read:
"Early in this case I raised an issue of pre judgment by a member which I felt was inappropriate and biased in relation to ethnicity of this family. This has continued and I feel a fair verdict cannot be reached."
We do not know, again because the note has not been timed, when that note was given to the judge. We do not know whether it was given before or after the adjournment on the Friday. If it was given to her before the adjournment on the Friday afternoon then it is unsatisfactory that it was not shown to counsel immediately so that they could prepare any arguments they wished to submit.[19]What did happen was that on the Monday morning, whilst the jury were outside court waiting to be brought into court to be directed to continue their deliberations,

the judge said this:

"I received a note from a juror at the beginning of the trial which I didn't mention to anybody because we hadn't started the evidence or if we had started the evidence we had only just started the evidence. But I had only just explained to them how they had to listen to the evidence in order to reach a decision and it didn't seem to me at that time that the juror's note required any comment so I didn't mention it and I didn't comment on it and we just carried on listening to the evidence. However, what the juror said on Friday afternoon was this ... [the note is then set out]. It seems to me that that does call for immediate comment and it calls for a comment that they must try the case only on the evidence and leave any prejudice that they have behind them when considering it."
[20]There was debate between bench and bar as to what was the appropriate course. Mr Bentley, for the appellant, was able to refer the judge to passages in Archbold and to the practice direction to which we have made reference. During the course of the argument Mr Bentley submitted that the juror referred to by the juror sending the note ought to be discharged.[21]After considerable deliberation the judge had the jury back in court. She said this to the jury:
"Members of the jury, I am sorry for the delay, but I have been discussing with counsel a note that one of your number sent on Friday afternoon."
She then set out the note. She continued:
"That is what the note said to me on Friday afternoon and so I have been discussing the matter with counsel because obviously it could potentially be a very serious matter. But what I want to say to you is as follows: I want to remind you, as I told you on Friday when I summed the case up to you, that first of all the prosecution must prove that the defendant is guilty. He does not have to prove innocence. The prosecution only succeed in proving the defendant's guilt if you are sure of it. Nothing less than that will do. You must decide the case only on the evidence that you hear. You must leave aside any question, prejudice or bias. You simply consider the evidence and whether the evidence makes you sure of the defendant's guilt, and I have explained to you that if you are sure he is guilty and if you are not sure, you must find him not guilty. I want you to go out again, please, members of the jury, but I do not want you to deliberate on the issue of guilt or not guilt just at this moment. I want you to consider in the light of the directions that I gave you on Friday and that I have just given you whether you are sure, as per the oaths that you took, that you can reach true verdicts on the evidence. I want the answer to that question before I decide to send you out to further deliberate, if you understand. So it arises from your question and I need to know the answer to my question. So would you please now go outside and consider that and come back and let me know the answer."
[22]We say in passing that we have concerns about the juror's note being disclosed to the whole jury without any opportunity to consider the matter with the individual juror. If, as was done in this case, jurors are told to bring matters to the attention of the judge if they have concerns, then it seems, to say the least, concerning to read this kind of note to the whole jury without prior discussion with the writer of the note.[23]The jury then came back half an hour later and the transcript reads as follows:
"JUDGE HUGHES: Members of the jury, having discussed it have you reached a view as to whether you consider you could try this case fairly on the evidence without bias? THE FOREMAN OF THE JURY: We have, your Honour. JUDGE HUGHES: Yes. THE FOREMAN: And we feel that we can try the case. JUDGE HUGHES: You can. Very well. I am going to ask you, please, to go to your room for one moment ..."
Subsequently the jury were asked to continue their deliberations, but in the meanwhile Mr Bentley had asked for the jury to be discharged and made an application to that effect. That application was refused by the judge. The jury brought in their verdicts on counts 2, 3 and 4 by a majority at about 2.30 that afternoon.[24]Mr Bentley submits to us that the only proper course was to discharge the jury in accordance with the application which he made.[25]Mr Clark submits that what the judge did was right. We invited him to consider whether or not the judge should not have spoken to the juror that Monday on his own. However, it is right to point out that by that stage the jury were in deliberations and any questions of the juror about the bias of another juror might have raised issues concerning the secrecy of their deliberations.[26]Mr Clark submits that the question asked of the jury by the judge was the right question, that the jury gave the answer which entitled the judge to continue with the trial, and that this court should accept that answer as conclusive of the fact that the appellant had the benefit of an impartial tribunal. He also submitted that if the juror who had written the two notes had remained concerned about what was happening in the jury room, then he would have come forward again. Indeed, Mr Clark invited the judge to remind the jury of the right of an individual juror to come forward, but the judge declined to do so.[27]We have looked at some of the authorities, and we note in particular paragraph 24 of the decision of another division of this court in Brown [2001] EWCA Crim 2828. In that case, in paragraph 24, Mance LJ expressed concerns about asking all jurors in open court in the manner that this judge did without having first given the juror an opportunity to have the matter ventilated privately. Also our attention was drawn to paragraph 30 of the decision of the European Court of Human Rights in Sander v United Kingdom [2001] 31 EHRR 44.[28]However, we do not need to consider the authorities in detail. We cannot be satisfied, in the light of all that happened in this trial, that this appellant had a fair trial before an impartial tribunal. He may have done, but we do not know, and in those circumstances there is but one conclusion, namely that the appeal has to be allowed and the conviction quashed.

Cited in 1 later judgment