R v James Peppiatt [2025] EWCA Crim 110

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[2025] EWCA Crim 110

IN THE COURT OF APPEAL

Date Thursday, 30 January 2025

Strand

London

WC2A 2LL

Before

THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

LORD JUSTICE HOLROYDE

MR JUSTICE BENNATHAN

SIR NIGEL DAVIS

Between

REXCrown

Between

JAMES PEPPIATT

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MR D GEORGE KC and MR J MILNER appeared for Applicant

_________

J U D G M E N T

[1]MR JUSTICE BENNATHAN: On 22 August 2023 in the Central Criminal Court before His Honour Judge Marks KC, the Common Sergeant, the applicant, then aged 23, was convicted by a majority of ten to two of murder. He applied for leave to appeal against that conviction, which was refused by the single judge. He renews his application for an extension of time, some 29 days, in which to apply for leave to appeal against conviction and renews that application itself.

[2]We have had an explanation for the modest delay in lodging grounds of appeal and if we find substantive merit we will not refuse leave on that basis.

[3]On 29 May 2021, Tony Eastlake ("the deceased") was stabbed in the back on Halliford Street, Islington, North London following an incident with the applicant. He collapsed and died in a car park a short distance from the scene. The applicant and the deceased were known to each other. Before his death the deceased had been in a relationship with the applicant's mother.

[4]On 1 April 2021 the applicant's mother, tragically, committed suicide. Throughout the applicant's life she had struggled with her mental health, and she had issues with addiction. She had attempted suicide on other occasions. Her severe mental health episodes had been witnessed by the applicant. From an early age he had been his mother's carer, and he had provided her with financial support.

[5]Although the applicant was aware of the relationship between the deceased and his mother, he was not close to the deceased. In the two weeks before her death the applicant's mother had made a further attempt on her life of which the deceased, at her request, had not made the applicant aware.

[6]Following his mother's death the applicant and the deceased met each other on a number of occasions, once in a café, secondly at the deceased's flower stall, on the third occasion when the applicant invited him to the funeral and the prosecution were to say that on that occasion the applicant had found out about the earlier previous suicide attempt and the deceased believed the applicant was blaming him for his mother's death.

[7]The fourth meeting was on 29 May 2021. At approximately 17.10 the deceased packed up his flower stall. At 17.14 he called the applicant's mobile phone and spoke to the applicant for just under two minutes. As he spoke to the applicant, he walked along Essex Road and arrived in Elmore Street, where the applicant was then living, arriving at about 17.20. The deceased was carrying a small black bag.

[8]At 17.23 the applicant and the deceased were captured on CCTV walking down Ecclesbourne Road, where they stopped, and a fight broke out between them. The fight lasted about 30 to 40 seconds. Both men went to the ground and as a result of the fight both men were injured, but not seriously.

[9]At 17.26 the deceased was captured on CCTV walking away bag in hand. The two men continued to exchange words. The deceased was captured on CCTV crossing the road and turning right into Halliford Street, then heading north, with the applicant following after him. As they approached Essex Road a witness emerged from an address on Halliford Street who saw the applicant approach the deceased from behind and punch him once to the left side of his back. The prosecution alleged that in fact the applicant was holding a knife and that when he 'punched' the deceased he in fact administered the fatal stab wound.

[10]On 1 June 2021 the applicant handed himself into Islington Police Station where he was arrested for murder. He was examined by a custody nurse and his injuries were photographed. He answered no comment when interviewed under caution. Whilst he was in custody the addresses associated with him were searched but the knife was not recovered.

[11]The prosecution case was that when the applicant first met with the deceased on Elmore Street, he had a knife concealed on his person. The allegation by the prosecution was that as the deceased had walked away after the first fight, he was deliberately stabbed in the back by the applicant.

[12]The evidence called by the prosecution at trial included the following:(1) The evidence of a detective sergeant dealing with the CCTV. In the normal way he collated the footage from relevant cameras in the area. The CCTV did not capture the moment of the stabbing and there was a period of approximately 28 seconds during which the applicant was out of view. It was agreed by the parties that the stabbing must have occurred during this time frame.

(2) The prosecution relation on the evidence of David Jonston. As he left his address Mr Jonston saw the deceased and the applicant walking 12 to 15 feet apart from each other. He saw the deceased look back at the applicant and when he turned back, he had a smile on his face. He heard the applicant say, "Don't fucking talk to me like that." The deceased continued to walk towards the carpark. The applicant approached him from behind and punched him to the small of his back, on the left-hand side. Moments later he saw the deceased on all fours in the carpark. He had not seen anything in the applicant's hand. He did not see the applicant and the deceased fighting on the floor at that stage. The witness accepted that he needed bifocals, which he was wearing at the time. He also drank and was a class A drug user.

(3) The evidence of Kaylee Singer, a florist who had worked on the deceased's flower stall in 2019. She confirmed what tools the deceased had used when she had last worked with him and that these were all recovered by the police - the suggestion being that that lent some support to the idea the deceased would not have had a knife from work with him, although the learned judge in his summing-up was to suggest to the jury that the evidence of Miss Singer from 2019 was really little help as to the state of affairs by the time of the killing.

(4) There was expert evidence from a pathologist, Doctor Ben Swift, who confirmed that the cause of death was a single stab wound. The deceased had bruising and abrasions to his head, chest, arms, legs, abdomen and back which were friction injuries which may have been caused by him falling to the ground or whilst on the ground. The deceased did not have any defensive injuries. It was not possible to say what the relative position of the deceased and the applicant was at the time the stab wound was inflicted. In relation to the injuries sustained by the applicant, the pathologist confirmed that he had a superficial laceration to his left eyebrow, which could have been caused by something striking the head or the head striking a solid surface. He had a bruise to the upper left arm, consistent with a bite mark. He had a shallow straight line cut to the palm of his right hand but, the pathologist, could not say when the injury was sustained. It was possible, he opined, that the injury to the hand was sustained in the process of him attempting to defend himself. It could also have occurred whilst the applicant was inflicting a wound on the deceased. It was not possible for the pathologist to say, in his view, which was more likely.

[13]The defence case was that it was the deceased who had the knife and was the aggressor. The applicant's case was that he had acted in lawful self-defence, and he stabbed the deceased in the course of trying to wrestle the knife away from him whilst they were both on the floor.

[14]The applicant gave evidence. He spoke of his history and becoming aware of his mother's difficulties. He knew there had been earlier suicide attempts. In late 2020 he became aware of a relationship between his mother and the deceased, which he approved of because the deceased did not drink.

[15]In April 2021 he was told that his mother had committed suicide. He was involved in arranging the funeral. He saw the deceased at the end of April and told him that he did not blame him for his mother's death. They exchanged phone numbers. Later he saw the deceased at his flower stall and the deceased gave him flowers to leave outside his mother's house. On another day he met with him and told the deceased of the date of the funeral.

[16]He had found out by then about the previous suicide attempt and he asked the deceased why he had not told him. The deceased told him that his mother had asked him not to do so. He understood this and they were to see each other next at the funeral.

[17]On 29 May 2021 he bought a suit for the funeral. At 5.14pm that afternoon he was at home when the deceased telephoned him and asked him why people kept ringing him up and blaming him for the mother's death. The applicant had not spoken of such things to anyone, nor did he think the deceased was to blame. The deceased, the applicant recounted, was angry. The deceased asked him where he was and the applicant told him he was at home. The deceased said that he would come round.

[18]A few minutes later the applicant heard a knock at the door. It was the deceased. He went outside and they shook hands. He asked if the deceased was alright. The deceased was upset and repeated his concerns that people were phoning him and blaming him for the applicant's mother's death. The applicant told him to ignore them but mentioned that he wished he had told him (the applicant) about the previous suicide attempt.

[19]The deceased said to him, the applicant recounted, "Where the fuck was you? It's your fault that she killed herself. You think you're a big man because you paid the rent." The defendant told the deceased that he was just upset because his free ride was over. The deceased became agitated and shouted, "Don't piss me off, I've taken a lot." The deceased dropped the bag he was carrying, was aggressive and moved as if he was going to punch out at the applicant.

[20]The applicant said he tried to punch the deceased, but it did not connect. The deceased then hit him to the left-hand side of his face. A fight broke out and they ended up on the ground. The deceased climbed on top of him and punched him in the face three times. He tried to put the deceased in a headlock to stop the punches. The deceased bit him on the arm. He tried to get up. The deceased grabbed him and pulled the hooded top he was wearing over his head and started to knee him in the stomach. He got out of his hoody and flicked it towards the deceased to try to put some distance between them. The deceased then walked off.

[21]The applicant accepted that he was still angry and asked the deceased where he was going. The deceased responded, "You know where I am." The deceased walked up Halliford Street and he followed. The deceased said, "Do you want me to smash your head in?" The applicant responded on his account, "Do you think you can bully me, like you bullied my mum?" The deceased then turned and said something deeply insulting and offensive about the applicant's mother. The applicant replied, "Don't talk to me like that" and the deceased started laughing. He said to the deceased, "Say that again." The deceased turned around and said, "Come here and I'll say it."

[22]The applicant said he walked up to the deceased and the deceased looked over his shoulder and then span around. He had a knife in his right hand. The applicant grabbed the knife with his right hand and then grabbed the deceased's shirt. They ended up on the ground again and struggled over the knife. The deceased rolled on top of him and tried to pin him down. He, the applicant, tried to wriggle out of his grip. He managed to get his right hand free and punched the deceased in the ribs with a hook-type punch, which he accepted was a stabbing motion. He did not intend, the applicant said, to kill the deceased or cause him any injury. He was not even sure that he had realised he had hold of the knife at the time. The deceased got off him and he got up. They walked away in different directions. He did not realise the deceased was seriously injured. What happened haunts him every day.

[23]As he walked away, testified the applicant, he realised he had hold of the deceased's knife and there was blood upon it. He started to 'freak out.' He saw specks of blood on the floor. He walked back to his mother's address and his father answered the door. He told his father that he had just had a fight with the deceased. He told his father that he had taken the knife from the deceased and might have caught him with it. Later his uncle telephoned and said that the deceased had been stabbed. He went to his aunt's house in case the deceased, who knew where he lived, came back. His Aunt learnt from a phone call that the deceased had died. The applicant panicked. His father rang a solicitor. The applicant wrapped the knife in tissue and put it in a plastic bag. He took his clothing off and assumed someone got rid of it. The next morning, he went to the canal and threw his phone and the knife into the canal. Later he handed himself in to the police station.

[24]His defence statement was drafted by the firm of solicitors who still act for him now. They were not the firm who acted for him at the police station. The applicant accepted, under cross examination, that the defence statement was different to the evidence he had given. He said the defence statement contained errors, as it was only a draft. He stated that he had asked his solicitors to correct the errors. It had been rushed as the solicitor had said that it was overdue. He accepted that he had read the statement before it was lodged with the court. He did not sign the statement. Due to the Covid pandemic there were no face-to-face legal visits at the prison. He instructed his solicitor not to submit it but the solicitor disregarded his instructions and told him not to worry. He confirmed that he had re-read the statement before the trial and maintained that he had asked his legal team to correct the document.

[25]The defence relied on four character referees:(1) Mary Walsh, who had been the applicant's tutor. She described the applicant as mature, caring and responsible beyond his years.

(2) Katheryn O'Donoghue confirmed that she had taught the applicant during his A-levels. She had never witnessed him being aggressive or violent. He was polite, likeable, popular, considerate and respectful.

(3) William Slater had employed the applicant as a labourer he was an exemplary employee. He was well-liked, punctual, respectful, very hard working, dedicated, took everything in his stride and was polite and mild mannered.

(4) Jason Wells had known the applicant since he was a baby. He was a tireless worker; he turned stressful situations around with his great sense of humour.

[26]The issues for the jury were whether the knife that caused the fatal injury to the deceased was produced by the deceased or whether it was produced by the applicant. If it was produced by the applicant then whether or not the applicant honestly believed it was necessary to use force to defend himself, and if so whether the type and amount of force used by the applicant was reasonable.

[27]The grounds of appeal as drafted before us were settled by Dean George KC and he has attended today pro bono with Mr Milner of counsel. We are grateful for them attending and for the submissions they have made. We will list those grounds of appeal and then address them in turn:(1) The judge erroneously permitted the draft defence statement not fully accepted or signed by the applicant to be relied upon as evidence. He then unfairly dealt with it in the summing-up by placing too much emphasis upon it.

(2) The judge was wrong to inform the jury that if they wrongly convicted based on errors of law, the Court of Appeal would rectify it. This lowered the severity of the jury's task and minimised the importance of their decision.

(3) The Judge's summing-up was imbalanced in favour of the prosecution, introduced new points not made or addressed by the parties and was detrimental to the applicant because it unfairly dealt with the case against him.

(4) The learned judge incorrectly summed-up the pathological evidence and the applicant's position on it, as well as incorrectly summing-up the applicant's position on the defence statement.

(5) The learned judge erred by not providing to the parties a copy of all of the jury notes submitted for matters to be addressed.

[28]Discussion The defence statement was lodged on the Digital Case System in November 2021. The trial was in August 2023, thus about 20 months later. The applicant had the same legal team from before the defence statement was served, continuing right up until today, albeit we are told sadly one of the early team has since passed away. It was when he was being cross-examined by the prosecution that his defence statement was introduced. There was the usual discussion somewhat later about the terms of the judge's directions of law and in due course the jury were directed in these terms, by way of a document given to them that was then read into the first part of the split summing-up:

"Defence statement. As I explained to you when the defendant was being questioned about the defence statement, it is a legal requirement for defendants, facing charges in the crown court which they are contesting, to file a defence statement setting out (a) the general nature of their defence, but note the documents is not required to include a full narrative setting out each and every detail of the defendant's account; (b) the matters of fact on which they take issue with the prosecution and why; (c) particulars of the matters of fact upon which they intend to rely. Now, you heard an amount of cross-examination of the defendant by Mr Evans as to matters of which the defendant spoke in his evidence which the prosecution submit did not accord with his defence statement. As I shall remind you more fully in the second part of my summing-up when I deal with the evidence, the defendant's account insofar as the defence statement is concerned is that (a) it was only a draft, (b) it was incomplete, parts were missing and parts were in the wrong order, (c) it was done in a rush as the solicitor said that it was overdue so far as the time limit was concerned, (d) in some instances the solicitor had included information which did not accord with the instructions that he had given her (e) having read it, he gave instructions to the solicitor that it should not be submitted to the court, but the solicitor disregarded those instructions, (f) he did not sign it. Note the prosecution accept that this was the case. It is entirely a matter for you what you make of the defendant's account in this regard, and whether you accept it either partially, fully or not at all. In the second part of my summing-up I shall further remind you of the detail of the defendant's evidence as to the particular parts of the document about which Mr Evans questioned him. Its relevance is that if you are sure that there is no adequate explanation for the difference or differences and/or the omissions, that is clearly something that you would be entitled to take into account against him in considering his evidence and the credibility of the account that he gave you both on the specific points and generally. The extent to which, if at all, you consider it right to do so is a matter for you. ... Conversely if, having regard to all of any of the matters set out in paragraph 40 above you conclude that this document was not or may not have been a fair representation of the instructions given by the defendant to his solicitor, and/or that it was submitted to the court or may have been expressly contrary to the instructions given by the defendant to his solicitor, you must not hold the content of the document against him. You must also not hold it against him if you conclude that insofar as details are concerned which were omitted that the document does nonetheless properly set out the general nature of his defence. Further, you must bear in mind in any event that you must not convict him either solely or mainly by reason of any adverse view that you form against him in relation to this aspect of his evidence nor should you give this aspect of the evidence disproportionate weight."

[29]What Mr George does not address in his written grounds of appeal is section 6E of the Criminal Procedure and Investigations Act 1996, of which subsection (1) states:

"Disclosure by accused: further provisions (1) Where an accused's solicitor purports to give on behalf of the accused— (a) a defence statement under section 5, 6 or 6B, or (b) a statement of the kind mentioned in section 6B(4) the statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused."

[30]It seems to us that section is a complete answer to the suggestion that the judge was wrong to allow the defence statement to be adduced until the jury were made sure that it was fully approved by the applicant. It also suggests the legal directions were overly generous to the applicant but that need not detain us.

[31]It is right to say that the judge examined the various differences between the applicant's account in evidence and that set out in the defence statement, and other judges might not have felt the need to engage with quite that level of detail. The applicant, however, had the protection of the written legal directions which set out his arguments about why the jury should not attach any significance to any failings in the defence statement, as well, of course, as the standard direction that the facts were for the jury not the judge.

[32]Mr George also suggests before us that the judge did not make clear to the defence, or indeed the prosecution, whether or not the jury would be given a physical copy of the defence statement itself. We have no transcripts of the terms of any such discussion and, without doubting Mr George's recollection, the words used in such a debate might be important. In the end it was conceded that the parts of the defence statement the judge referred to were in evidence through the prosecution's cross-examination. On that basis while it might have been better, going on Mr George's recollection, for the judge to have told the parties the process he had in mind, that deficiency if it occurred in the way Mr George recollects, does not even begin to raise an arguable ground of appeal.

[33]In the course of our discussing the arguments about legal directions, Mr George told us that parts of the exchanges between counsel and the judge were by email. That may well be convenient in a busy criminal trial but if there are significant exchanges by way of email they should, in some form, eventually be uploaded to the Digital Case System. We would also think it advisable that normally any significant discussions are at least summarised in open court. Otherwise, this court may not be able to understand what had happened at trial and, in addition, and importantly, the public have no way of knowing what has occurred in what are, or should be, transparent and open court proceedings.

[34]The judge, by way of introduction of the legal directions, told the jury that if he had got the law wrong, "a higher court would correct it". The suggestion made in this application is that such a reassurance somehow might have made the jury less conscientious about their task. We simply cannot see how that follows. The Judge's passing comment was true and, if anything, might suggest the jury could follow the legal directions without any concerns and focus their own decision-making powers on the facts. Once more, it is not a comment all judges would make, but we can see no basis whatsoever for saying it was improper or somehow renders the applicant's conviction in any way unsafe.

[35]The suggestion of an unbalanced summing up focuses on aspects that overlap with other grounds, such as the pathological evidence and the defence statement, but also look in particular at two parts of the second part of the judge's split summing-up, namely a comment about the time frame and how the evidence of the witness Jonston was expressed to the jury.

[36]The need for judges to be fair and impartial has been stressed by this court and others on many occasions. To take but one example, in Marchant

[2018] EWCA Crim 2606

, Leggatt LJ said [15]:

"In summing up the case for the jury, the essential tasks for the judge are, first, to explain the law which the jury needs to apply and, second, to review the essential features of the evidence. In reviewing the evidence, the judge should seek to focus the jury's attention on the issues of fact which they need or may think it important to decide and to remind them of the main evidence bearing on those issues. The judge must also identify the defence case. The judge is perfectly entitled to comment on the evidence by pointing out matters which may tend to support or undermine either party's case on an issue. Nor is there any requirement that a summing up should be balanced in the sense that a judge should seek to compensate for a weak case or downplay a strong one. What is vital is, first, that the judge should not trespass on the role of the jury by telling them what conclusions they should draw on matters which are for them to determine and, second, that the judge's review of the evidence should be objective and impartial and not skewed unfairly in favour of the prosecution (or the defence)."

[37]The judge pointed out to the jury, as part of his factual summing-up, that it was agreed that the period when the applicant and the deceased were out of the view of any CCTV cameras, the same period in which it was agreed the fatal violence had occurred, was 28 seconds. The judge added: “One of the questions you may want to ask yourselves is if a fight as described by the defendant could have occurred in that relatively limited amount of time."

[38]This was not an argument that had been advanced by the prosecution, at least not in those terms. This was clearly a question that pointed out an issue that might not assist the defence case. Some judges might not have posed the question, and posing a great number of such questions might reach the stage such as to render the summing-up unfair. On a similar note, it might have been better if the judge had flagged that question up to the parties in the absence of the jury before closing speeches, thus allowing them to deal with it. In our view however, in the context of the evidence and the remainder of the summing up, this was not an observation that was improper, either by itself or in combination with the remainder of the judge's summation of the evidence.

[39]In reminding the jury of the evidence of the eye-witness Jonston the judge did both introduce and conclude his summary be stressing the witness's importance. He also said:

"If you are sure that his account in that regard is right, you may conclude that the defendant at that critically important moment was not acting in self-defence."

[40]The judge also pointed out to the jury that there were aspects of the agreed evidence, such as the location of the fatal wound on the deceased's body, that were consistent with the account Mr Jonston gave. This witness, however, was indeed potentially very important. If the jury were sure his account was correct, then his account of the applicant walking up and striking the deceased a blow to his back, was indeed fatal to the defence of self-defence. The judge also pointed out there were potential issues with the witness: he was a crack cocaine user with imperfect vision and he had only come forward sometime after the event he claimed to have witnessed. As the passage in Marchant makes clear, it is no part of a judge's duty to play down a strong case and this witness, independent of either party, provided a powerful piece of evidence if the jury accepted his account. We can find no fault with how the judge dealt with this part of the case.

[41]Turning to the ground of appeal about how the judge dealt with the pathological evidence. The criticism of the judge's treatment of a defence submission about the nature of the fatal wound is that the judge wrongly suggested this defence argument was based solely on the evidence of the pathologist. This posed a difficulty for the defence as Dr Swift had said in terms that in his expert opinion the wound could have been caused by either of the two scenarios suggested by the prosecution and defence. This error was pointed out to the judge, and he later corrected his mistake in terms. That correction, it is then submitted, lacked the cogency and force of an argument which, on the defence case, was said to be compelling.

[42]We are not impressed with this submission. The jury heard the defence closing speech. The judge later identified correctly the nature of their submission. No party has the right to expect the judge will express their argument to the jury in exactly the terms they would wish.

[43]Similarly, an argument is made about how the judge dealt with the evidence about the cut to the applicant's hand. The pathologist had said it could have been caused by the applicant using the knife or by his grasping it to take it from the deceased. There was a defence submission to the jury that the combination of the wound to the deceased and the nature of the injury to the applicant supported his, the applicant's, account. That was a submission Mr George was absolutely permitted to make but there cannot be an expectation that a trial judge will slavishly rehearse each and every defence argument in his necessarily selective summing-up of the evidence.

[44]The final ground of appeal is expressed as, "The learned judge erred by not providing to the parties a copy of all of the jury notes submitted for matters to be addressed." This submission has been modified in oral argument, but as it was placed before us in writing we need to address it.

[45]In this trial there was a note from the jury that led to the judge giving the majority direction. Counsel were not shown the note as it was described as a "numbers note". We will adopt the same expression.

[46]We have seen all the notes. In his written grounds of appeal Mr George KC accepts the judge followed a long-standing practice by indicating the broad effect of the note without sharing it. But, argues Mr George, that procedure is outdated and illogical, not least as when, as in this case, the jury convict after a majority direction they are asked to reveal whether they have done so unanimously or by a majority, and if the latter, by what majority. Numbers, it is submitted, are thereby revealed. So there can be no logical reason, it is argued, not to disclose them when they are set out in notes from the jury. The closest this Court gets to any legal analysis of the rules governing how such numbers notes are dealt with is a paragraph in the grounds of appeal that asserts: "The perception created in such circumstances ... fail the Article 6 Human Rights Act and common law/open justice and due process fairness tests".

[47]Leaving aside the distinct but important issue of how such an alleged procedural failing would render the applicant's murder conviction unsafe, we do have to observe that an attempt to overturn so well-established a procedure requires a much more considered approach to the law than has been proffered to us by the applicant. However, as the point is raised, we now need to address it with the care it deserves.

[48]The way in which a trial court deals with a numbers note has been established in our system for at least well over 30 years. In Gorman

[1987] 85 Cr. App.R 121

Lord Lane, CJ, drawing on earlier decisions of this court, said:

"Accordingly, it seems to us that certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to consider its verdict. First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. We have been helpfully referred to a decision of this Court reported in Connor, The Times, June 26, 1985, where that very situation seems to have arisen. Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication. Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed."

[49]The law concerning the confidentiality of a jury's deliberations is not just a matter of judicial decision making. The current statute governing these matters is the Juries Act 1974. Therein, section 20D states, as far as is relevant to this issue, under the heading "Offence: disclosing jury's deliberations":

"(1) It is an offence for a person intentionally- (a) to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings before a court, or (b) to solicit or obtain such information, subject to the exceptions in sections 20E to 20G."

[50]The exceptions are duly set out. In Section 20E which, so far as relevant, under the heading "Offence of disclosing jury's deliberations: initial exceptions", states: "(1) It is not an offence under section 20D for a person to disclose information in the proceedings mentioned in section 20D(1) for the purposes of enabling the jury to arrive at their verdict or in connection with the delivery of that verdict.

(2) It is not an offence under section 20D for the judge dealing with those proceedings to disclose information— (a) for the purposes of dealing with the case…..

[51]A final and possibly relevant part of the same Act is section 21(5) which states:

"Subject to the provisions of this Act, all enactments and rules of law relating to trials by jury, juries and jurors shall continue in force and, in criminal cases, continue to apply to proceedings in the Crown Court as they applied to proceedings before a court of oyer and terminer or gaol delivery."

[52]Drawing together the threads of these various sources:(1) There is an obvious reason for keeping the deliberation of juries confidential; it allows jurors, who may on occasions be dealing with very serious cases and on occasions even with dangerous individuals, to argue and express their views in private without the fear that their opinions and personal decisions will be known to the outside world.

(2) A balance needed to be struck, however, with the need for the public to be informed of the basis of a verdict where, for example, a jury convict after a majority direction. Hence the need for the questions routinely asked after such a guilty verdict is returned, which has the effect of confirming the jury have followed the judge's direction on the numbers by which such a verdict may be reached.

(3) Save for that exception, the general rule that numbers notes are kept confidential fulfils the need for the confidentiality of deliberations.

(4) The balanced approach has been confirmed by the appellate courts in numerous cases, of which Gorman is just one example.

(5) Section 20D makes it illegal, amongst other things, to disclose "votes cast by members of the jury in the course of their deliberations". It must follow that, flatly contrary to the applicant's written submissions in this case, the legislature's intention is that at least at times such voting numbers are kept confidential.

(6) The exceptions of section 20E are consistent with allowing the overarching rule to be impinged upon to allow a jury to confirm the numbers after a post-majority-direction guilty verdict, hence the exception of in "connection with the delivery of that verdict" in section 20E (1).

(7) Similarly, the current practice of the jury being able to tell the judge the state of their deliberations is catered for by the exception, in the same subsection of "enabling the jury to arrive at their verdict".

(8) The exception in 20E (2), of "for the judge dealing with those proceedings to disclose information" could be read so as to allow a judge to disclose numbers notes but for that to be done without limit would, as we have already noted, make part of the section 20D offence meaningless. That exception would, however, permit a judge to ask the parties for their submissions on a jury question about facts or laws, such as is commonly done in cases [and indeed was done in the applicant's case].

(9) The terms of section 21(5) makes reference back to the more and the less serious sections of the assizes criminal court system, unsurprisingly as the Juries Act was only passed some two years after those courts were replaced by the Crown Courts by an Act of Parliament of 1971. It proffers at least a steer, however, that the intent of that Act is to leave law untouched, save where the provisions of the 1974 Act clearly vary them.

(10) As a basic matter of statutory interpretation, when Parliament passes legislation that touches law previously made clear by the appellate courts, a failure to specifically reverse or vary that pre-existing law can be seen as the legislature approving of it. Here the addition of section 20D, added by an amendment to the Act made in 2015, was some years after cases such as Gorman made that position clear.

[53]The applicant's reference to

Article 6 of the ECHR

does not assist. The guarantees of that Article closest to this issue are the right to a "fair and public hearing" and that “judgement shall be pronounced publicly" (emphasis added in both phrases). The applicant had both. There is no right to a court's deliberations being made public. This Court does not deliberate in public, nor indeed does the European Court of Human Rights.

[54]For all these reasons there is no arguable basis for an appeal to be found in any of the many arguments advanced on the applicant's behalf. We therefore refuse the extension sought and refuse these applications. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE55. Tel No: 020 7404 1400

56. Email: rcj@epiqglobal.co.uk