Hinds, R v [2018] EWCA Crim 833

No: 201703048/B4

[2018] EWCA Crim 833

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 8 March 2018

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE HOLROYDE

MRS JUSTICE McGOWAN DBE

THE RECORDER OF GREENWICH

HIS HONOUR JUDGE KINCH QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

NYROME HINDS

Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Mr M Magarian QC appeared for Applicant

J U D G M E N T

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LORD JUSTICE HOLROYDE:

[1]On 7th June 2017 after a trial at the Central Criminal Court before His Honour Judge Dodgson and a jury, the applicant Nyrome Hinds was convicted of offences of attempted murder, possession of a firearm with intent to endanger life, and robbery. On 25th July 2017 he was sentenced to life imprisonment for the offence of attempted murder, the minimum term being one of 15½ years less the period of time which he had spent on remand in custody. Concurrent terms of 20 years and 14 years' imprisonment respectively were imposed on the other two counts. An application for leave to appeal against conviction was refused by the single judge, Openshaw J. It is now renewed to the full court.

[2]Two of the grounds of appeal initially advanced before the single judge are no longer pursued and we need say no more about them. The remaining grounds relate to events after the verdicts had been returned, when a juror sent emails to defence counsel, and to one aspect of the summing-up.

[3]We are grateful to Mr Magarian QC who has attended pro bono to present the grounds of appeal on the applicant's behalf.

[4]The relevant facts of the case can briefly be summarised as follows. Andrew and Rebecca Campbell were robbed outside their home on the evening of 23rd November 2016 during the hours of darkness. Two men, one of whom was armed with a handgun, demanded the Rolex watches which Mr and Mrs Campbell were known to wear. As it happened, Mr Campbell was not wearing his watch that night, but his wife was wearing hers and it was stolen in the robbery.

[5]It was the prosecution case that the robber armed with the handgun was this applicant and that the other robber was his co-accused, David Sterling. In the course of the robbery, the gunman shot Mr Campbell twice, first in the stomach and then in the leg. A third shot was fired which in fact hit Sterling in the arm. Both robbers then ran away.

[6]There was much reference during the trial to a man called Stanbury. Mr and Mrs Campbell gave descriptions of the robbers, but initially did not name them. Mrs Campbell did however name Stanbury in a statement made two days after the shooting and picked Stanbury out at an identification procedure. Neither Mr nor Mrs Campbell picked out the applicant at any identification procedure.

[7]The robbery was captured on a CCTV recording which included an audio track on which Mr and Mrs Campbell could each be heard shouting various remarks. The jury at trial were provided with a document setting out a number of agreed facts. Agreed fact 9 began as follows:

"On 8th March 2017 DC Kate Gregory produced a transcript of the words caught on the CCTV footage during the index incident in the following terms..."

The agreed fact then set out the terms of DC Gregory's transcript which included the following:

"Rebecca Campbell can then be heard to say, 'No no no, Stanbury, no. ' This is repeated several times during the incident."

However, in her evidence at trial, Mrs Campbell adamantly denied that she had ever spoken Stanbury's name during the incident. She said that she had made a mistake about Stanbury's involvement and she resiled from her identification of him. In cross-examination, she denied that she had come under any pressure to change her account in that way.

[8]Other CCTV footage played at trial showed the applicant, Sterling and Stanbury together with one another both before and after the robbery. The prosecution relied amongst other things on evidence as to the use of mobile phones which could be ascribed to each of these three men, and on cell siting evidence which was said to show that Stanbury was not at the scene of the robbery at the material time and therefore could not have been the gunman. Mr Magarian has taken us to details of the evidence which he relies on to support the argument that at the time of the robbery Stanbury's phone might have been in the possession of another man, leaving Stanbury free to take part in the robbery.

[9]Fingerprint evidence linked both the applicant and Sterling to vehicles recorded on the CCTV footage. DNA evidence linked Sterling to relevant discarded clothing. Furthermore, when Sterling was stopped by the police the following day he was found to have a gunshot wound to his arm.

[10]The applicant's defence was that he was not present at or participating in the robbery and accordingly could not have been and was not the gunman. He did not give evidence.

[11]Sterling, who was charged first on the indictment, admitted that he took part in an armed robbery and he pleaded guilty to relevant charges in that regard. He denied however the charges of attempted murder and possessing a firearm with intent to endanger life. He gave evidence to the jury, including evidence to the effect that the gunman, whom he would not name, had told him that the gun was loaded with blank cartridges. Sterling was acquitted of the charges which he had denied. The applicant was convicted as we have indicated.

[12]The jury having returned their verdicts were discharged. Sentencing was adjourned to a later date. That evening, Mr Magarian QC received an email from one of the jurors, which he very properly drew to the immediate attention of prosecution counsel and the trial judge. The juror indicated in her email that she was a law student. She said that she was "absolutely devastated for Mr Hinds with the decision that was made by the other 11 jurors, who failed to understand the task they had to do, failing to understand the judge's directions." She expressed the hope that Mr Hinds would be able to appeal. She expressed her admiration for Mr Magarian's skill in presenting the defence case. She said:

"Hinds was prejudged immediately by the others for not taking the stand and then assumption after assumption was used to find him guilty. I am so upset and so sad for Mr Hinds, it was clear to me right from the beginning of the trial that he should be found not guilty."

[13]On 13th June 2017 the juror sent a further communication to Mr Magarian, which again he dealt with entirely appropriately. She reiterated that other members of the jury did not understand the learned judge's directions. She alleged that other jurors had not examined the circumstantial evidence with the care which the learned judge had directed them to adopt. She reiterated that:

"The majority of the jury believed Hinds guilty from the outset because he didn't take the stand despite the judge's directions stating it was wrong to convict for this."

She continued: "These fundamental errors happened while in deliberation, coupled with some members of the jury not believing that Rebecca Campbell stated 'Stanbury Stanner Stan' on CCTV, even though it was in the agreed facts".

[14]We observe that when the juror referred to other jurors believing the applicant was guilty "from the outset" because he did not give evidence, the correct position was of course that the decision of the applicant as to whether to give evidence was not made until a late stage of the trial and after Sterling had completed his evidence.

[15]By section 20D of the Juries Act 1974, which replaced section 8 of the Contempt of Court Act 1981, it is an offence for a person intentionally to disclose information about statements made, opinions expressed, arguments or votes cast by members of a jury in the course of their deliberations. That provision is subject to exceptions in sections 20E to 20G which ensure that the offence does not prevent the proper investigation of alleged juror offences or irregularities. Mr Magarian has told us that, as we would have expected, the juror has been arrested following her communications to which we have referred. We do not know whether any charge has been brought against her and it is not necessary for us to say more about that for the purposes of this judgment.

[16]In Mirza

[2004] 1 AC 1118

, the House of Lords by a majority upheld the common law rule that this court will not admit evidence of jury deliberations after a verdict has been delivered. The rationale of the rule lies in the need to protect jurors from any outside interference in or criticism of their collective decision-making. The rule of course works in the same way whether the impugned verdict is one of guilty or not guilty. Jurors, however, can and should raise any allegations of misconduct by their colleagues during the trial and the Court of Appeal would be entitled, in limited circumstances, to admit evidence of outside interference with jurors or of bribery of them. We observe that under the Criminal Procedure Rules and Criminal Practice Direction, judges now make it plain to jurors at the outset of a trial that they must raise any concerns with the judge before the trial ends, precisely because it may be too late for anything to be done after the trial has concluded. Mr Magarian has confirmed that the learned trial judge gave such a direction at the beginning of this trial. Moreover, the jury were provided with a leaflet summarising that and other important rules as to their conduct in very plain terms. With an eye to the obviously sensitive position of a juror who feels obliged to report a failure by one or more colleagues to follow the rules, the leaflet, in common with the usual practice amongst trial judges, indicates that the troubled juror can either speak to an usher or jury officer or can write a note to the judge and give it to an usher. It is therefore plain that the juror concerned is not expected immediately to make a public pronouncement in open court.

[17]Lord Hope at paragraph 123 of his speech in Mirza identified one modification of the principle, namely a rare situation in which a jury completely repudiated their function of deliberating upon the evidence, for example by resorting to the tossing of a coin in order to determine the verdict. A similar point was made at paragraph 45 in the speech of Lord Slynn, where reference was made to a well-known case in which a jury consulted a ouija board in order to arrive at their verdict. There is however no suggestion that anything of that sort happened in the present case.

[18]It may be noted that in the next paragraph of his speech, paragraph 46, Lord Slynn made clear that he was referring to a small number of cases as illustrating that some modifications of the rule have been accepted, but that in other cases "the basic rule has been followed that the court should not receive evidence as to what happens in the jury room or in the jury box."

[19]In the later case of Adams

[2007] 1 Cr.App.R 34

, this court was prepared to hear evidence from jurors in a case in which a juror had alleged, after verdict, that another juror had pretrial knowledge of the defendant. Again, nothing of that sort is suggested here.

[20]Criminal Practice Direction Part 26M.41 to 26M.58 now contains rules as to what should happen if a jury irregularity is alleged after the jury has been discharged.

[21]Mr Magarian relies in his submissions on the dissenting speech of Lord Steyn in Mirza, in which Lord Steyn put forward reasons why the principle upheld by the majority might be capable of resulting in injustice in some cases. It is clear from the speeches of the other Law Lords that they were fully alive to that risk, but concluded that it could not prevail over the need for the certainty of the principle which they upheld.

[22]Mr Magarian's submissions are principally directed to what he contends is the significance of the juror's communications with him. He submits that if the jury did indeed refuse to accept the agreed fact as to what Mrs Campbell had said during the robbery, that would be a repudiation of their oaths. He further relies upon the indication by the juror that other jurors treated the applicant's decision not to give evidence as being decisive or in effect decisive of his guilt and thereby failed to follow the judge's entirely proper direction in that regard. Mr Magarian submits that these are in effect forms of juror misconduct which should be investigated to avoid the risk, which he contends exists here, of a miscarriage of justice. He submits that the present case can be distinguished from other cases in which a post-verdict communication appears to be nothing more than an expression of grievance by a juror who dissented from the majority verdict. Here, he argues, the juror, whilst making plain her own disagreement with the majority verdict, also puts forward in articulate terms important and specific matters which Mr Magarian submits must be investigated. He urges this court either to treat the juror's communication as fresh evidence, admissible pursuant to section 23 of the Criminal Appeals Act 1968, or to direct the Criminal Cases Review Commission to investigate and report pursuant to section 23A of that Act.

[23]In a written Respondent's Notice it was submitted that the juror's communications do not amount to anything more than an expression of dissent from the verdicts and do not cast doubt on the safety of the convictions.

[24]In the further ground of appeal, Mr Magarian submits that the learned judge failed adequately to deal with evidence relating to a high visibility jacket which could have been worn by a third person. He argues that that was an aspect of the evidence which was of importance because it was capable of undermining the prosecution case that Stanbury in effect had an alibi for the time of the robbery. He also argues that in his decision to refuse leave on the papers, Openshaw J may have been unduly influenced by a contention in the Respondent's Notice that Sterling's evidence at trial effectively confirmed that this applicant was the gunman. Mr Magarian in detailed submissions argues that Sterling did no such thing. He declined to name the gunman. Nothing he said in cross-examination pointed the finger at this applicant, and if anything he implicated Stanbury.

[25]We deal first with the grounds of appeal relating to the juror's communications. Mr Magarian understandably places considerable weight on the apparent divergence between the terms of the agreed fact which we have quoted and the alleged view of some jurors about what Mrs Campbell could be heard saying on the CCTV recording.

[26]It is of course entirely appropriate for facts which are agreed between prosecution and defence to be reduced to writing and nothing we say should be regarded as discouraging that practice. We do however draw attention to the precise terms of section 10(1) of the Criminal

Justice Act 1967:

"Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted."

In the experience of this court, a practice has grown up of entitling documents "agreed facts" rather than "formal admissions pursuant to section 10 of the Criminal Justice Act 1967", possibly on some occasions because of the concern that a defendant who formally admits a fact may wrongly be thought by the jury to have some personal knowledge of it. It may be that on occasions this approach somewhat blurs the importance of the provision in section 10 as to an admission of fact being conclusive evidence against the party making the admission, and it may be that this case provides an example of that blurring.

[27]The agreed fact which we have quoted is not on its face an agreement, still less an admission, as to precisely what can be heard on the CCTV recording. It is no more than an agreed fact that a particular police officer prepared a transcript in the terms set out. It is to be noted in this regard that the learned

judge when summing-up said of the agreed fact at page 28B of the transcript:

"And the officer believes that Rebecca Campbell ... can then be heard to say, 'No, no, no, Stanbury, no'."

We think that in those circumstances the foundation of Mr Magarian's principal point falls away, because there was no formal admission by anyone that the words spoken were as noted in the officer's transcript, and the jury were perfectly entitled to form their own view as to what they could hear on the recording. We recognise however that counsel at trial may have understood the agreed fact to be a formal admission as to the words spoken and we will in a moment deal with the consequences if that is so. We should first though consider a point made by Mr Magarian in which he asks rhetorically how counsel could proceed if jurors were free to depart from agreed facts. We do not agree with Mr Magarian that the points which we have made earlier in this judgment may be productive of chaos or uncertainty in future trials. They are intended only to point to the need for complete clarity on all sides as to what is being agreed and by whom. If there is indeed agreement between all parties that certain words were spoken, and there can be no room for argument about it, then a fact can be admitted unequivocally in those terms. Here, as we have noted, that does not appear to have happened.

[28]We do however turn to consider the position on the assumption that all trial counsel may have thought that it was an agreed fact that specific words were spoken and that there was no room for anyone to think otherwise. Even if that were correct, it would not in our judgment bring this case within the rare and exceptional category in which an investigation of possible jury irregularity should be made. Mr Magarian realistically acknowledges, as he did at trial, that there was a case for this applicant to answer but he argues it was very far from being a strong prosecution case. We do not agree with that assessment. True it is that neither Mr nor Mrs Campbell had picked out the applicant at any identification procedure, notwithstanding that the gunman was unmasked and that Mrs Campbell at any rate had an opportunity to see him at close range. True it is also that there were entirely valid jury points to be made by Mr Magarian about Mrs Campbell's change in stance as to whether or not she had identified Stanbury at the scene. But there was, in our view, nonetheless strong circumstantial evidence against the applicant. Contrary to Mr Magarian's submission, it seems to us that Sterling's evidence did indeed go a long way to implicate this applicant as the gunman, not least because he freely named Stanbury as the planner and instigator of the robbery but asserted that he could not name the gunman through fear of the consequences. He was not cross-examined on behalf of the applicant. In particular it was not put to him that notwithstanding his unwillingness to name the gunman, he was in a position to confirm that the gunman was not the applicant. The CCTV evidence, as we have said, showed the applicant with both Sterling and Stanbury before and after the robbery. The jury were entitled to accept the cell siting evidence as proving that Stanbury was not at the scene of the robbery at the material time and therefore could not have been the gunman. In this regard it must not be overlooked that Mr Campbell said that the gunman was not Stanbury, whom he would have been able to identify if it had been him. The jury were also of course entitled, subject to following the learned judge's direction, to regard the applicant's silence at trial as providing some support for the prosecution case.

[29]In those circumstances, even if it could be said that the juror's communications alleged a failure by some jurors to accept an admitted fact, that could not be said to be a decisive point and would not in our judgment cast doubt on the safety of the convictions.

[30]In our view, the communications from the juror are properly regarded as coming into the category of an expression of dissent by a juror who disagreed with the majority. She, like her fellow jurors, had been instructed that if there was a matter of concern it must be raised in the suggested manner in the course of the trial. She did not raise any such concern, either during the evidence or at any point over the period spanning three days when the jury were in retirement. Given that her assertion is that other jurors had made their minds up from the outset, that is a striking omission. We would add, moreover, that the juror, whilst criticising others for prejudging the guilt of the applicant, said in her first email that it was clear to her "right from the beginning of the trial" that the applicant should be found not guilty. It follows that the juror herself had formed a view as to the appropriate verdict before hearing any evidence and before knowing, for example, what either Sterling or the applicant might say if they gave evidence.

[31]We are not persuaded that the juror's assertions, not made during the trial but only after verdicts had been returned, are sufficient to cause this court to take the highly unusual course of directing an investigation into whether the learned judge's directions were ignored. Whether that would in any event amount to the sort of misconduct which it was contemplated in Mirza might properly be the subject of enquiry, is a matter which may need to be considered if in future another case more directly raises the point. Here, we are not persuaded that the juror's communications provide any ground for viewing the verdicts in this case as a potential miscarriage of justice.

[32]As to the complaint about one specific aspect of the summing-up, we need not add to the observations of the learned single judge in refusing leave on the papers. It suffices to say that this was not a matter of complaint which was raised at the time of the summing-up and in our judgment it cannot be said to cast any arguable doubt on the safety of the convictions.

[33]For those reasons, notwithstanding Mr Magarian's efforts on behalf of the applicant, we are satisfied that these convictions are safe and that there is no arguable ground for appeal. Nor is there any reason for this court to direct an investigation pursuant to section 23A of the 1968 Act. We are grateful to Mr Magarian for appearing pro bono as he has done, but this renewed application is accordingly refused. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400