R v Jason Smith [2023] EWCA Crim 1256

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2023] EWCA Crim 1256Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 17 October 2023
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)(LORD JUSTICE HOLROYDE)MRS JUSTICE YIP DBEMRS JUSTICE FARBEY DBE
Between
REXCrownV
Between
JASON SMITH__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 18-22 Furnival Street, London EC4A 1JSTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR W SNEDDON appeared for AppellantMR D ATKINSON KC appeared for CrownJ U D G M E N TNOTE - THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY THIS JUDGMENT IS NO LONGER SUBJECT TO THE REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981 WHICH ARE MENTIONED IN PARAGRAPH 25 OF THE JUDGMENT.IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS.MRS JUSTICE YIP :
[1]On 15 February 2023, in the Crown Court at Bournemouth, the applicant was convicted of two offences, attempted robbery (count 1) and aggravated burglary (count 2). Both verdicts were by a majority of 11: 1. Shortly after the verdicts had been returned, a note written by the jury foreman was passed to the judge, informing him that a member of the jury had said, that morning, that they had researched something overnight but had not expanded on what that was. As the jury had by then returned their verdicts and been discharged the judge was functus officio. He notified the Registrar of Criminal Appeals, and a police investigation was initiated. In due course this led to a juror, Paul Dawes, being convicted of three offences under the Juries Act 1974. In the meantime, the applicant was sentenced to a total of 12 years’ imprisonment. The applicant seeks to appeal against conviction and sentence, his applications have been referred to the Full Court by the Registrar.[2]Count 1 arose out of an incident involving the applicant and the complainant, Ashley Bourne, on 12 December 2020. It was agreed that there had been an altercation between the two of them on that date. The nature and cause of the altercation were in issue. The prosecution case was that, having arranged to meet Bourne to sell cannabis to him, the applicant produced a knife and demanded he handed over whatever he had on him to meet a debt owed to another person. Bourne made his escape and managed to get back into the car he arrived in. As he did so the applicant is alleged to have shouted: “I’m coming back to your yard five man strong”.[3]Six days later, Bourne was at his sister’s home when two masked men with knives and replica firearms barged in through the front door demanding cash and drugs. They left with £300 worth of cannabis. That was the subject of count 2. During the ensuing struggle one of the men was described as having Bourne by the scruff of his neck. The prosecution relied on evidence that the applicant’s DNA had been found on the collar of the jumper being worn by Bourne at the time. Bourne accepted in evidence that he was unable to remember when he had also been wearing that jumper on 12 December.[4]The applicant did not give evidence, but his case at trial was that he had not produced a knife or issued any threats during the first incident. He denied any involvement in the events which were the subject of count 2. The issues for the jury were therefore on count 1 whether the appellant had threatened and attempted to rob Bourne on 12 December, and on count 2 whether the applicant was one of the masked men who broke into Bourne sister’s home.[5]Two other men stood trial alongside the applicant. Both were charged on count 2 alone, Jake Hannam was alleged to be the second masked man but was acquitted on the direction of the judge following a successful submission that there was no case for him to answer. Paul Longwas said to have driven the two men to the house. He was convicted and sentenced to 3 years’ imprisonment. Although he submitted an appeal against conviction, he has since withdrawn that appeal.[6]The police investigation which resulted from the jury foreman’s note involved the obtaining of a statement from the foreman in which Paul Dawes was identified as the juror concerned. He was approached by the police, and immediately admitted that he had conducted some research. He was arrested and cautioned. Arrangements were made for him to attend a police station with his laptop and to be interviewed under caution. It appears that no other jurors were approached as part of the investigation.[7]The jury retired to consider their verdicts on 14 February 2023. They were sent home overnight resuming deliberations the next day. The jury foreman told the police that as they were discussing the evidence that morning, another juror said that he had been thinking about the case the previous night. Dawes then said:
“I have done some research last night and found a case where a man had got convicted because they had found one sock in one house and another in another house, and they had found his DNA in both socks”
. She said that Dawes did not elaborate further. She said that she was concerned because the jury had been told by the jury officer and the judge, not to conduct research or to look anything up online. She said that what Dawes said did not influence her decision but she did not know if it influenced the other jurors. None of the other jurors raised it as a concern.[8]In interview, Dawes was asked what research he did and what he had shared with the other jurors. He said that he was looking into similar cases because the jury generally, “didn’t feel there was a smoking gun that basically was a cut and dried case”. He said that the reason he had done his research was because one juror was stubborn throughout the process and did not agree with anything. He recognised the offences would carry a lengthy prison sentence and said, “I wanted to make sure I was doing the right thing”.[9]Dawes said that he told the other jurors that he had done some research looking into similar cases and that he felt the information they had was more than sufficient for a conviction, because they had a lot more than the cases he had researched and found. Asked what the purpose of his research was, Dawes said, “To put my own mind at rest really I guess, and because we had three members of the jury that were of sort of wavering and didn’t know which way to go. I felt I was actually bringing some more information to the deliberation, I guess.” He explained that each of the jurors was given 5 minutes to say what they thought, and he mentioned his research to try to add weight to his view that a guilty verdict was reasonable. He said this:
“I think where people were on the fence in terms of what evidence we had, I was just trying to demonstrate that other cases had been guilty verdicts on similar or less evidence.”
[10]When Dawes’s laptop was examined, it revealed that he had undertaken multiple searches relating to aggravated burglary offences during the trial period. His searches included a news report about a case where DNA had been recovered from two socks. Dawes had also viewed a website which contained information about a parole hearing for a “Jason Darren Smith”. That Jason Smith is not in fact the applicant. Dawes had also searched the names of the applicant’s co-defendants. These searches were not addressed with Dawes in interview. He had denied looking for information about the defendants or the witnesses, or anything specific to the instant case. It is not clear, therefore, whether he recognised that “Jason Darren Smith” was not the applicant. There is no evidence that Dawes mentioned any research about the defendants to his fellow jurors.[11]No complaint is made about the judge’s directions to the jury or any aspect of the trial other than the jury irregularity. At the beginning of the trial the judge gave a clear and unequivocal direction to the jury that they should not conduct their own research into the case. He also directed the jury’s attention to the information sheet, routinely provided to jurors, which clearly instructs jurors that it is illegal to look for any information at all about the case on the Internet or anywhere else, it also tells jurors they have a collective responsibility to see that the rules are followed and that they have a duty to report any breaches of the rules by anyone including a juror explaining how to do that.[12]During his summing-up the judge directed the jury that they should reach their verdicts only on the evidence they had heard and that they should not speculate. They were directed to consider each count and each defendant separately and given an appropriate direction about circumstantial evidence. They were also appropriately directed about the expert evidence.[13]By his grounds of appeal, the applicant contends that it is now known that a member of the jury conducted research and shared his research with his fellow jurors as a means of convincing them to convict the applicant. It is argued that the bringing of extraneous material into the jury deliberations, upon which neither counsel or the judge had the opportunity to comment, renders the applicant’s convictions unsafe. It is further argued that Dawes appears to have found bad character evidence in respect of the co-accused, Long, in addition to finding what may have appeared to him to be bad character evidence relating to the applicant. He did not find any such evidence in relation to Hannam. It is suggested that the jury may have been influenced by this additional information, wrongly believing that the judge directed the acquittal of Hannam because he was the only one of good character. Further, the applicant relies on the fact that the only juror who reported Dawes’s clear breach of the rules was the jury foreman and even she did so only after the convictions were returned. In those circumstances, it is submitted that there can be no confidence that the members of the jury who convicted the applicant followed other important legal directions that were given to them.[14]Having considered the position carefully, the respondent does not seek to resist the appeal against conviction. The respondent acknowledges that Dawes’s conduct was reprehensible and amounts to a procedural irregularity which gives rise to a feeling of unfairness. The respondent also accepts that there is a risk that Dawes may not have appreciated that the information he found about “Jason Darren Smith” did not relate to the applicant. There was no opportunity for any mistake to be corrected or for the judge to give any direction about this material. Although there is no evidence that this information was shared, it may at least have influenced Dawes. The respondent does not accept that there is any force in the argument that the jury may have thought that the reason they were directed to acquit Hanham was because he was the only defendant of good character. The respondent also submits that there is little force in the argument that the fact that Dawes ignored the judge’s direction about research and 10 of the 11 other jurors failed to report his clear breach suggests that the jury ignored the judge’s other directions.[15]The respondent concludes though that there is at least a risk that the jury were improperly influenced in reaching their verdict by material which they should not have considered and that the safety of the applicant’s conviction on count 2 is thereby undermined. It is also accepted that it is difficult to argue that the adverse verdict on count 2 did not influence the jury’s conclusion on count 1. Further, Dawes may at least subconsciously have relied upon material he had read about the parole hearing as evidence of bad character which supported conviction on count 1. For these reasons the respondent does not wish to contest the appeal against conviction but seeks a retrial. Realistically, Mr Sneddon accepts that there are no proper grounds for resisting the application for a retrial. We are extremely grateful to counsel for their helpful and well-focused written submissions and for the care and attention which has obviously been given to this matter on both sides.[16]There is no doubt that the admitted actions of Dawes in researching and sharing information about other cases, with a view to bolstering his own views and to reassuring other jurors who were wavering, was a significant jury irregularity. Regrettably, it appears Dawes was not entirely honest when interviewed, since he denied conducting any research into the defendants, yet analysis of his laptop revealed searches on their names and the viewing of material which was or may have been perceived as relevant to their character. Dawes was not asked about this material and so it is not known whether it had any bearing on his views of the case. Further, while there is no evidence he shared such information with any other juror, we note that the only jurors spoken to in the course of the investigation were the foreman and Dawes. Given Dawes’s less than frank account to the police, the possibility remains that he may have shared more than he has admitted to at least with some other jurors.[17]When a jury irregularity is identified the overarching consideration is one of fairness. It is very well established that verdicts must be reached only on the evidence heard by the jury in court and not on the basis of extraneous material. Where extraneous material has been introduced into the jury’s deliberations, the approach of this Court will be to make inquiries into the material. In R v Thompson [2010] EWCA Crim 1623,

Lord Judge said:

“If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has no or no proper opportunity to deal, the conviction is likely to be unsafe.”
[18]In this case it is known that information about other cases, obtained from Dawes’s internet research, was directly introduced into the jury’s deliberations. Dawe’s expressed reason for such material being introduced was that one juror was expressing firm views that others did not agree with, and two other jurors were wavering. Further, Dawes said that he had conducted his research to make sure he was doing the right thing in convicting when there was “no smoking gun and the case was not cut and dried”.[19]As the irregularity did not come to light until after the verdicts had been returned, the trial judge had no opportunity to deal with it at the time. Although he had clearly directed the jury to decide the case on the evidence, both at the outset and in his summing-up, there is no suggestion that any of the jurors referred to those directions when Dawes said what he did in the course of the deliberations. There appears to have been no express disapproval of Dawes’s reference to the extraneous material or attempt to shut him down. Rather, he was permitted to introduce what he had found on the internet as part of the jury’s deliberations.[20]We consider that a fair-minded and independent observer, having considered all the known circumstances, would conclude that the jury, or at least some of the jurors, may have been improperly influenced by material which was introduced by Dawes’s researches rather than through the trial process. Such material had not been considered or addressed by the parties or by the judge, so there was no opportunity for comment or suitable directions. On his own admission, the material influenced Dawes, in that it provided him with comfort that he was right to find the applicant guilty, his clear intention in mentioning it at the stage he did was to offer similar comfort to other jurors who continued to waver. We consider the respondent is right to acknowledge that the admitted sharing of information about other cases may well have influenced the thinking of other jurors, particularly in relation to count 2.[21]We agree with the respondent that there is little force in the applicant’s suggestion that Dawes’s researches into the character of the defendants may have led him to the conclusion that the judge directed the acquittal of Hannam because he was the only defendant of previous good character. However, it is of concern that Dawes had looked for information about the applicant and his co-defendants and that he lied to the police about it. It is difficult to know how the information he found may have influenced him, even if not shared more widely. While it was plainly wrong of the other jurors not to follow the clear instructions given to them that they must immediately report any breach of the rules by a fellow juror, this does not lead automatically to the conclusion that they ignored other directions from the judge. Although the judge properly directed the jury to consider the verdict separately, the evidence in relation to count 2 cannot be wholly separated from that relating to count 1. Ashley Bourne was a primary witness on both counts and the jury had to access his credibility. If the jury were comforted in their reliance on the DNA evidence to establish that the applicant was guilty of count 2, that may also have provided comfort that Bourne’s account in relation to count 1 was true. In all the circumstances, we have concluded that the actions of Dawes in conducting Internet research and sharing at least some of his findings in the course of the jury’s deliberations affects the safety of the applicant’s convictions on both counts.[22]We therefore grant leave to appeal against conviction and allow the appeal. We quash the convictions. Having heard the submissions on both sides and, in light of the realistic concession made by Mr Sneddon that the application for a retrial cannot be resisted, we order a retrial and further directions will be given in relation to that shortly. Although we have considered the written submissions in relation to the appeal against sentence, that appeal falls away in light of our decision to quash the convictions and order a retrial and so we need say no more about sentence at this stage.[23]THE VICE-PRESIDENT: As my Lady has said, we allow the appeal and quash the convictions and order a retrial. We give the following directions with regard to the retrial. It will be a retrial on both the counts which have been quashed, namely those charging attempted robbery and aggravated burglary. We direct that a fresh indictment be served in accordance with rule 10.8(2) of the Criminal Procedure Rules, which requires the prosecutor to serve a draft indictment on the Crown Court officer, not more than 28 days after this order. We direct that the appellant be re-arraigned on that fresh indictment within 2 months. We direct that the venue for trial should be the Crown Court at Bournemouth. We make absolutely no criticism of the trial judge and mean no disrespect to him, but we think it better, in all the circumstances, if the retrial is listed before a judge other than he.[24]We have considered the application for bail. The sentence imposed and itself the subject of an application for leave to appeal, is an indication of the seriousness of these matters. We are satisfied that there is a substantial risk that, if released on bail, the appellant will fail to surrender to custody, bail is therefore refused, and he must be remanded in custody.[25]We make an order, under section 4(2) of the Contempt of Court Act 1981, postponing any report of these proceedings until after the conclusion of the retrial. That order is necessary in order to prevent a substantial risk of injustice in the course of the retrial. We direct that the respondent must notify the Criminal Appeal Office as soon as the retrial has been concluded, so that this order can then be discharged.[26]The final matter, Mr Sneddon, which is a matter for your information rather than anything else, as you probably appreciate, the original legal aid order in the Crown Court does not cover the retrial so a fresh application will have to be made. That application must be made to the relevant office of the Legal Aid Agency in Liverpool. 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