Guthrie & Ors, R. v [2011] EWCA Crim 1338

[2011] EWCA Crim 1338Case No 2011/01743/B5Case No 2011/01869/B5Case No 2011/01878/B5Case No 201101879/B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
Miss Recorder English
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/05/2011
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE BEATSONMR JUSTICE BEAN
Between
RCrownRiccardo GuthrieDefendantBianca GuthrieDefendantCosimo GuthrieDefendantCourtney CampbellDefendant
Mr S Stein QC and Mr D D’Souza for Riccardo GuthrieMr S. Stein QC and Mr J Edwards for Bianca GuthrieMr S. Stein QC and Mr A Harper for Cosima GuthrieMr S. Stein QC and Mr G Mohabir for Courtney CampbellMr S Russell-Flint QC, Mr K Dent, and Mr D Jugnarain for CrownHearing Hearing dates : 10 th May 2011
Judgment

The Lord Chief Justice of England and Wales:

[1]During February and March 2011 these appellants, together with another defendant, were standing trial at Wood Green Crown Court before Miss Recorder English and a jury on six counts of conspiracy to defraud and a further count of transferring the proceeds of crime. The allegation, in essence, was that the appellants dishonestly involved themselves in fraudulent applications for housing benefit and council tax benefit by adopting and using false identities over different periods in relation to properties in a variety of London boroughs.[2]The jury were sworn on 7 February. They retired on 11 March. During the course of their retirement they acquitted one defendant. It appeared that jury tampering involving one juror had taken place. Given that the jury was already deliberating its verdicts, it was impossible to cure the problems arising from jury tampering by discharging the single juror. Accordingly, in the interests of justice, the Recorder decided that the entire jury should be discharged. She later ruled that, as the conditions in section 46(3) of the Criminal Justice Act 2003 (the 2003 Act) were established, she would continue the trial without a jury and deliver the remaining verdicts. She granted leave to appeal this order.[3]Section 46 of the 2003 Act addresses the discharge of the jury because of jury tampering. It provides:
“(1) This section applies where – (a) a judge is minded during a trial on indictment to discharge the jury, and (b) he is so minded because tampering appears to have taken place. (2) Before taking any steps to discharge the jury, the judge must – (a) inform the parties that he is minded to discharge the jury, (b) inform the parties of the grounds on which he is so minded, and (c) allow the parties an opportunity to make representations. (3) Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied – (a) that jury tampering has taken place, and (b) that to continue the trial without a jury would be fair to the defendant or defendants; But this is subject to subsection (4). (4) If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial. (5) Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled. (6) Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial. (7) Subject to subsection (5), nothing in this section affects the application of section 43 or 44 in relation to any new trial which takes place following the termination of the trial.” (a) a judge is minded during a trial on indictment to discharge the jury, and (b) he is so minded because tampering appears to have taken place. (2) Before taking any steps to discharge the jury, the judge must – (a) inform the parties that he is minded to discharge the jury, (b) inform the parties of the grounds on which he is so minded, and (c) allow the parties an opportunity to make representations. (3) Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied – (a) that jury tampering has taken place, and (b) that to continue the trial without a jury would be fair to the defendant or defendants; But this is subject to subsection (4). (4) If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial. (5) Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled. (6) Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial. (7) Subject to subsection (5), nothing in this section affects the application of section 43 or 44 in relation to any new trial which takes place following the termination of the trial.”
[4]We should perhaps begin our consideration of the issues which arise in this appeal by emphasising that the jurisdiction now available to be exercised under section 46 of the 2003 Act adds to rather than replaces the court’s existing powers to deal with what we can describe as jury difficulties. As Mr Sam Stein QC agreed, the common law power of the judge to discharge the jury as a whole or to discharge an individual juror or jurors remains undiminished by the statutory provisions relating to the circumstances in which a trial on indictment may take place without a jury, and section 16 of the Juries Act 1974, which enables the court to discharge any member of the jury for incapacity or for “any other reasons” remains in force.[5]The provision, therefore is directed to problems arising from jury tampering during the course of a trial. Where it appears to have taken place and the judge forms the preliminary view that the jury should be discharged, the judge must consider whether the steps required by sub-section (2) must follow. Thereafter, in the light of representations the judge must terminate the trial if that is necessary in the interests of justice. If so a new trial with a new jury may be ordered. Alternatively the jury may be discharged, and provided the judge is satisfied to the criminal standard that jury tampering has taken place and that it would be fair to the defendant or defendants to continue the trial without a jury that order may be made. Nothing in section 46 suggests that the judge is prohibited from discharging the jury on the basis of jury tampering and subsequently addressing the question whether to terminate the trial or order that it should continue on separate occasions.[6]Dealing with it broadly at this stage, Mr Stein, who did not appear at trial, but who has acted on behalf of the appellants in these consolidated appeals submitted that the order made by the Recorder should be revoked because of failures in the process of disclosure and investigation, and indeed the hearing of the facts relating to jury tampering, which had led to an inappropriate finding that jury tampering had taken place, and also because the assessment of the facts relating to the fairness of continuing the trial without a jury was inadequate and wrong. To continue with the trial without a jury would be unfair, and indeed would not be perceived to be fair by an informed observer. He suggested that the principles which applied in cases of this kind were still in a state of development. To the extent that not every potential situation where the issue might arise for decision has yet been addressed, we agree. However, the issue has now been examined in this court on a number of different occasions, the Recorder had them fully in mind, and the principles are clear. (R v Twomey and others [2009] EWCA Crim 1035, R v KS [2010] EWCA Crim 2377, R v Twomey and others [2011] EWCA Crim 8.)[7]We shall summarise the essential facts. This trial was not, so far as the jury was concerned, entirely trouble free. There was a minor incident involving one of the appellants, Cosima Guthrie, and a juror near the public canteen on 15 February, and then a further allegation of improper conduct between that appellant and another juror on 3 March which undoubtedly caused that particular juror a good deal of concern and distress. This incident had a resonance in relation to later events. For the purposes of this judgment it is sufficient to notice among other features that Cosima Guthrie asked the juror for her telephone number. After a careful investigation of the facts, the Recorder remanded Cosima Guthrie in custody and rejected an application made by Riccardo Guthrie for the jury to be discharged. All the appellants were aware of these facts, and the way in which the Recorder had addressed them in open court, and in due course, when the issue of further jury tampering arose for decision, the Recorder, as counsel must have appreciated, had them in mind, in particular in the context of Cosima Guthrie’s remand in custody. In the meantime, as the trial proceeded, the Recorder gave a number of rulings and orders, in the usual way, some favourably to the appellants and adverse to the prosecution, and some to the opposite effect.[8]At the conclusion of the summing up the jury retired on 11 March 2011, and after the weekend, on 15 March, one of the then defendants, Vanessa Williams, was acquitted. She has no further involvement in this case. On the same date one of the jurors was discharged due to a pre-existing holiday commitment. The expectation now was that the jury would conclude its deliberations and deliver its verdicts.[9]On 16 March, an allegation of jury tampering was drawn to the attention of the court. Further inquiries were therefore necessary to establish the reliability of the information. In the meantime the discussions of the jury were postponed, as it turned out, indefinitely. The next day, the 17th March a woman called Sarah Lodge, a former companion of Cosima Guthrie, was arrested and interviewed. After some “no comment” responses to the interviewing officers, she denied any involvement in jury tampering. Neither the fact of her arrest nor the interview records were disclosed to the defence at this stage.[10]At 3.40pm on the 17th March disclosure was made to the defence in the following terms: 1. An allegation has been made that a third party has been in regular contact with a female member of the jury in an attempt to ensure the juror returns a not guilty verdict; and has been contacting the juror about how deliberations are going. 2. The jury member has allegedly discussed jury voting and deliberations in the course of this contact. 3. It is understood that Cosima Guthrie, and the third party have been in communication since contact was made with the juror. 4. It is understood that Celine Joyner-Walker (the mother of Cosima and Bianca Guthrie) has been involved, and there has been material to suggest that Bianca Guthrie is aware of what has taken place.”[11]Bail applications were made by the appellants. All save Courtney Campbell were remanded in custody.[12]On 18 March the parties were informed that the Recorder was minded to discharge the jury from returning further verdicts on the basis that it appeared that jury tampering had taken place. They were offered the opportunity to make representations. The Crown submitted that the jury should be discharged on the basis that it was already impossible to say with any confidence that the jury had not been tampered with. Counsel for Courtney Campbell recorded that a deep sense of unease was now surrounding the proceedings. Despite his earlier application for the jury to be discharged counsel for Riccardo Guthrie together with counsel for Bianca Guthrie were unequivocal in their opposition to the proposal that the jury should be discharged. No submissions were advanced on behalf of Cosima Guthrie.[13]The Recorder concluded in the light of the history of the proceedings to date, and all the material placed before her in what she considered to be “both a cogent and compelling format”, that it, in accordance with the language of section 46 (1) of the Act “does appear that jury tampering has taken place (and) …there is a “high degree of need” for this jury to be discharged”. She added that it was not a decision taken “lightly or happily”, not least given the very advanced stage of the proceedings, but she concluded that there was “no realistic or workable alternative”. Although the decision was regrettable, the jury was discharged. The remands in custody, and the order that Courtney Campbell’s bail should continue were repeated.[14]The case was then adjourned for the Recorder to determine whether the trial could continue without a jury in accordance with section 46(3) of the 2003 Act or whether it should be terminated under section 46(4).[15]On 24 March further disclosure was made in a fresh document served on the appellants. This reads:
“1. An allegation has been made that a third party (Sarah Lodge) has been in contact with a female member of the jury in an attempt to ensure that the juror returns a not guilty verdict; and has been contacting the juror about how deliberations are going. 2. The jury member has allegedly discussed jury voting and deliberations in the course of this contact. 3. This contact is alleged to have taken place following the remand of Cosima Guthrie on 4th March 2010 (a mistyping) up to and including the time when the jury were in retirement to consider their verdict. 4. The contact between Sarah Lodge and the juror is alleged to have taken place “face to face”
. One of these meetings is said to have taken place after court had risen for the day and in close proximity to the court buildings/grounds. This meeting may have been witnessed by another juror. Sarah Lodge is also alleged to have had the mobile telephone number of the juror. Contact is alleged to have taken place between Sarah Lodge and the juror on approximately three occasions. 5. It is understood that Cosima Guthrie, Bianca Guthrie and the third party (Sarah Lodge) have been in communication since contact was made with the juror. 6. It is understood that Celine Joyner-Walker has also been involved. 7. There is presently no direct evidence of the contact between Sarah Lodge and the juror. 8. Sarah Lodge was arrested and interviewed in relation to this allegation. A copy of the interview is attached to this disclosure document.” On reflection perhaps paragraph 7 would have more accurately read, “there is presently no evidence of physical contact between Sarah Lodge and the juror”, but nothing turns on the difference. Beyond that the information before the Recorder was accurately summarised. The issues which had to be addressed were clear. The sources of the information were, of course, not disclosed. The interview record provides a clear indication of the issues about which the police were concerned.[16]On 28 March the case was re-listed. A clip of CCTV footage made on the afternoon of 15 March was available to be viewed by the court. It showed members of the jury leaving the front entrance, together with a group of three jurors, two of whom had been involved in the earlier incidents, who left together, and were followed some 30 seconds later by Sarah Lodge and Bianca Guthrie. However the Recorder further ordered that the defence should be informed that there was no CCTV footage which showed any actual contact between Sarah Lodge and any juror. She plainly believed that it was important for the purposes of any defence representations that that fact should be expressly notified. The court then considered lengthy submissions from all counsel about the provisions of section 46(3) of the 2003 Act, and their applicability, or otherwise, to the facts of the present case.[17]The Recorder summarised the evidence of tampering. She believed that it had been placed before her in what she continued to consider to be both “a cogent and compelling form”. Despite the lack of evidence of direct contact with a juror, for reasons set out in her judgment, basing herself on what she considered to be “the reliable and cogent evidence”, she found herself driven to the conclusion that jury tampering had indeed taken place.[18]She then examined the question whether she should continue the trial without a jury by considering whether such a decision would be fair to the defendants. Apart from a general sense of grievance she could find nothing to suggest that it would be unfair to the defendants, or any of them, to continue with the trial and deliver verdicts.[19]We have studied both judgments by the Recorder, the first explaining the reasons why she decided that the jury should be discharged on the basis of jury tampering, and the second, her assessment whether it was appropriate on the facts of the case to make an under section 46(3) that the trial should continue without a jury. Both are carefully structured judgments, indicative of the care with which the Recorder approached what she plainly regarded as an onerous responsibility, which she nevertheless felt impelled to undertake on the basis of the conclusions she had reached on the evidence.[20]The Recorder considered a body of material in accordance with public interest immunity principles. We have also studied the entirety of the material drawn to her attention and considered the evidence which she considered. Nothing considered by the Recorder under public interest immunity principles at any stage of the proceedings with which we are concerned should have been disclosed to the appellants or their legal advisers. The disclosure made to the defendants accurately summarised the effect of that material.[21]The essential features of Mr Stein’s complaint begin with the difficulties which frequently beset the process when the judge examines material which necessarily and for good reason attracts public interest immunity principles. There is no suggestion of any improper concealment of material which was not subject to public interest immunity principles, but the appellants were plainly deprived of access to the evidence disclosed to the judge in accordance with those principles. That indeed is their purpose and effect. As it seems to us, a semblance of balance and proportion when the issue for decision in relation to jury tampering arises in the middle or at, as here, at the very last stages in the trial process, is needed. By definition the court is not addressing an application under section 44 of the 2003 Act. An urgent decision is needed. The jury is waiting for it, either part way through the evidence or, as here, in the middle of their final deliberations. If the process takes too long, then whether or not jury tampering has in fact occurred, the trial cannot sensibly be resumed. That is why the Recorder rightly ordered early disclosure of the first summary of the facts as soon as practicable. This made clear that the attempt to “nobble” a female member of the jury had been made by a third party, not himself or herself any of the appellants, although two of them and their mother who were involved, so it was alleged, in the dishonest fraud, were expressly identified. By the time of the second summary, prepared in the light of the further material seen by the judge, the third party was identified, and a slight amendment was made to the summary pointing out that it was no longer asserted that Sarah Lodge had been in “regular” contact with the juror, although the fact of the contact continued to be asserted.[22]When the Recorder considered submissions based on the second document, the issues which require to be addressed were clearly identified to the appellants, although the sources providing the information were not. There had been sufficient time for counsel to consider the position with their clients, and to make the detailed submissions that they did. It would have been open to them to ask to call Sarah Lodge to give evidence, or to call any one of the appellants themselves, to refute any suggestion of the alleged link with Sarah Lodge, or to deny contact with her and assert ignorance of any discussions that may have taken place with the juror. Although we can fully understand the sound forensic reasons why they did not take any of these steps, or suggest them, the opportunity was there to be taken.[23]Perhaps this consideration led Mr Stein to criticise the initial decision to discharge the jury. He suggested that the information provided in the first summary was incomplete, and in particular that if the absence of any direct evidence of contact between Sarah Lodge and the juror in questions had been drawn to the attention of the appellants at that stage, the opportunity to challenge the evidence could or would have been taken at the earlier stage, before the jury was discharged. He also suggested that the Recorder had not correctly addressed the burden of proof when she decided that the jury should be discharged. That is not how we read the passages in the judgment which are not couched in the language of probability. At that stage the Recorder was careful to emphasise more than once that before she would make the order currently under appeal she would, after the discharge of the jury, examine the express conditions provided in section 46(3) before reaching the conclusion that the trial should proceed. And that is what she did, again examining the issue of jury tampering. Mr Stein submitted in essence that it was too late for her to remedy her earlier, and as he contended, flawed approach. We disagree. Even if that criticism of the earlier decision were sustained, it is clear from the second judgment, when she was directly addressing section 46(3) considerations, that the Recorder properly directed herself about the burden and standard of proof. In our judgment that decision would not have been vitiated by misdirections made when she was addressing the question whether the jury should be discharged.[24]In essence, on this aspect of the argument, with the exception of the fact that before she identified the issues which required to be addressed the Recorder considered material under public interest immunity conditions, and that the appellants were not made aware of the content of that material, the argument on behalf of the appellants is not sustained. That consequence inevitably follows when public interest immunity processes are properly adopted, as they were here. The issue has been ventilated in previous decisions of this court. It would not be helpful to repeat the principles and once more explain the reasons why this process may be necessary and appropriate, not least where appellants are fully notified of the specific reasons for legitimate disquiet about the integrity of the trial process.[25]The analysis of the concept of fairness in section 46(3) of the 2003 Act tends to produce wide-ranging arguments of a general kind, unspecific to the individual case, and more particularly, at the stage at which the issue whether there should be trial without jury is being addressed. As we have explained, the considerations in section 44 are not identical to those which arise in section 46 (3) for the simple and obvious reason that in the last situation, the question for decision is whether the trial taking place should continue as a judge alone trial, rather than whether a trial which is about to take place should proceed as trial by jury or trial by judge alone. Thus in Twomey the issue for decision was whether the then forthcoming trial should be trial by judge or trial by jury: on the other hand in KS the question was whether, as here, an existing trial should continue. Nothing in the legislation suggests that the trial judge who has made findings that the pre-conditions to the discharge of the jury and the continuation of the trial are satisfied must then recuse himself. Such a proposition would effectively extinguish the power created by section 46 (3). It would be strange if it were possible for a criminal or group of criminals to take extreme steps to undermine the process of trial by jury, and then to argue that judge who had made the necessary findings should not continue the trial. If this major plank in Mr Stein’s submission were correct, every trial judge who had made the necessary findings would then have to disqualify himself. Of course, there are situations such as those faced by Judge Roberts QC in the Twomey case where, having considered a vast amount of material on public interest immunity grounds which bore not on the issue of jury tampering, but on the entire conduct of the prosecution, he felt it right to disqualify himself on the basis that he had seen too much material to enable him to bring the necessary objectivity to the decision making process if he had continued the trial and delivered the verdicts. Similarly, this court took the view that in KS the expressions by Judge Alexander QC of his views about the criminality of the defendant in the earlier series of trial which culminated in the trial of KS meant that the perception of a fair trial if the trial continued before him on his own would be undermined. The normal approach nevertheless remains that, assuming the necessary conditions are established, the case should continue and that the attempt to disrupt the trial should fail.[26]We have examined all the material before the Recorder. We can find nothing in it to suggest that she should have disqualified herself. None of the matters of which she became aware, whether during the trial in the course of giving her rulings, or in the course of the investigation into jury tampering provides any ground for suggesting that she would have been unable to exclude inadmissible material from her consideration of whether or not these appellants were guilty, and nothing she has said or done at any stage in the process could create any perception of unfairness of bias.[27]A variety of different submissions were advanced to and rightly rejected by the Recorder. For example, it was suggested that the statutory provisions in ss44-46 of the Criminal Justice Act 2003 were intended to be confined to criminal activity of a far more serious kind than the criminality alleged in the present case, and to trials which had taken or would take very much longer and cost very much more than the present trial. No such limitation is found in the statute. It was also suggested that the exercise of the jurisdiction should be confined to cases where the jury tampering involved serious intimidation, perhaps by professional criminals. Again there is no such limitation in the legislation.[28]The question of the level of criminality involved in an individual case, and the absence of any evidence of organised violent crime capable of carrying out threats of violence, or sufficiently resourced to provide substantial bribes is more likely, as is the issue of the nature and extent of police protection, to be relevant where the question to be decided is whether a trial should start without a jury, than to the question whether an existing trial should continue without one. In the present case these considerations do not seem to us to be relevant. Similarly, we anticipate that if the level of intrusion with the jury found by the Recorder had taken place at an earlier stage in the trial, say, before the summing up, she might well have thought it sufficient to discharge the single juror rather than the entire jury. The trial could then have continued with a reduced number of jurors. But by the time this interference had taken place, the jury was in retirement, and she was left with no alternative but to discharge the entire jury.[29]It was also submitted that unless the evidence relating to jury tampering involved each and every one of the appellants, the appellants to whom it did not apply should not be deprived of the right to trial by jury. However the judge rightly reminded herself of the observation in R v Twomey [2011] where these submissions, or submissions very close to them, were rejected on the basis that:
“…findings in relation to jury tampering may be made without it being possible for the court to ascribe responsibility to any particular defendant…the legislation relating to trial by judge alone is directed towards the trial process rather than to individual defendants where there is more than one… ”
And again, it was suggested that where the jury tampering had apparently been undertaken by a third party, without the knowledge, consent or acquiescence of any individual appellant, then that appellant too, should not be deprived of trial by jury. Naturally, if it were to emerge that an outside party unconnected with any of the defendants was responsible for jury tampering, without the consent, acquiescence or involvement of any defendant, we agree that it might very well be harsh for the defendants, each one of them wholly innocent and uninvolved in the process of jury tampering, to be deprived of trial by jury. However, that is an unlikely event or series of events, and as the narrative of the facts here demonstrates, the process of jury tampering was not remote from all the defendants. In particular, Sarah Lodge involved herself in this trial after Cosima Guthrie’s bail had been withdrawn because of her activities in approaching a juror half way through the trial, and the personal link between Sarah Lodge and Cosima Guthrie was amply established.[30]We can express our conclusion on this part of Mr Stein’s submission in very brief terms. We cannot detect any unfairness or perception of unfairness in the Recorder’s conclusion that the pre-conditions to an order that the trial should continue without a jury were established, and that she should accept responsibility for delivering the verdicts. Accordingly these appeals are dismissed.[31]It was suggested that a possible additional problem might arise from the fact that there had now been a substantial delay between the end of the evidence and the delivery of this judgment, so that the Recorder might not any longer be in a position to deliver a judgment together with her verdicts. At this stage all that is necessary for us to record is that that decision will be for the Recorder. We should be astonished if she had not in fact prepared her judgment when these matters were fresh in her mind, in order to deliver it, if the appeals were unsuccessful, soon afterwards. If we are wrong, the Recorder will address the question whether she can now fairly deliver her judgment and verdicts.

Cited in 1 later judgment