R v AJF [2025] EWCA Crim 197

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IN THE COURT OF APPEAL

CRIMINAL DIVISION

Case No 2023/00942/B3

Date Wednesday 22 January 2025

Between

R E XCrown

London

WC2A 2LL

ON APPEAL FROM THE CROWN COURT AT NEWPORT (ISLE OF WIGHT)

(MR RECORDER ONSLOW) [44LN0025122]

[2025] EWCA Crim 197

B e f o r e:

THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION

(Lord Justice Holroyde)

MRS JUSTICE CUTTS DBE

MR JUSTICE SHELDON

____________________

- v -

Between

A J F

____________________

Computer Aided Transcription 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)

_____________________

The Applicant appeared in person for in person

Mr N Tucker appeared for Crown

____________________

J U D G M E N T

(Approved)

[1]This applicant was convicted of two offences of rape committed many years ago, when he was aged between 14 and 16 and his victim, "V", was aged between 8 and 10. His application for leave to appeal against conviction has been referred to the full court by the Registrar.

[2]V is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of the offences. We are satisfied that publication of the name of the applicant, or of anything which would identify him, would lead to the identification of V. We therefore omit from this judgment circumstantial details which might lead to such identification, and we direct that in any report of this case the applicant must be referred to by the randomly chosen letters "AJF". Nothing may be included in any publication which reveals his true name or may otherwise lead to his identification.

[3]For reasons which will become apparent, it is unnecessary to say anything in this judgment about the facts of the case. It suffices to say that the prosecution relied on the evidence of V, her later complaints to others, and a witness who had seen the applicant and V on one of the occasions about which V gave evidence. The applicant gave evidence denying the allegations.

[4]It is, however, relevant to note that in the years since the offences were committed the applicant had become active in politics, both locally and elsewhere, and was a prominent figure in his local island community.

[5]The applicant was represented at trial by counsel and solicitors. Following his conviction, counsel settled five grounds of appeal against conviction. The first ground related to a note which a member of the jury had sent to the court after the trial had ended. We shall return to this shortly.

[6]The other grounds of appeal related to a complaint about the venue of the trial; challenges to the trial judge's rulings on an application to dismiss the charges and on a submission of no case to answer; a challenge to the judge's decision refusing to stay the proceedings as an abuse of the process; and a criticism of the judge's decision to admit bad character evidence.

[7]The juror's note raised a number of matters. In summary, these were as follows:(1) A complaint that a fellow juror had behaved in an angry and threatening matter, causing the author of the note and another juror to cry;

(2) An assertion that all parties involved had said it was an unusual case because of the time lapse "and because there is no evidence" and "the majority of us felt exhausted";

(3) An allegation that the angry juror, and at least two others, had "found the applicant guilty from day one";

(4) A complaint about the reporting of the case;

(5) An allegation that a juror "disclosed to us in the juror room that [the applicant] was her councillor and a friend had told her she knows something about [the applicant] but would not reveal what until after the trial. She also said she didn't particularly like [the applicant] as he had refused her planning application. Does this mean she should not have been on the jury?"

[8]The applicant, through counsel, invited this court to exercise its powers under section 23A of the Criminal Appeal Act 1968 to direct the Criminal Cases Review Commission ("CCRC") to investigate the juror's allegations. It was submitted that the note disclosed evidence of jurors reaching premature conclusions against the applicant's interests, improper pressure being placed on jurors to convict the applicant by one of the jury, and evidence of bias by one of the jurors arising from the applicant's status as a local councillor.

[9]At a directions hearing, the court considered submissions on these points from counsel for both parties. The court referred to the principle stated, for example, in R v Mirza

[2004] UKHL 2

, and R v Thompson

[2010] EWCA Crim 1623

, that when considering a post-trial complaint of an alleged jury irregularity, this court is bound to proceed on the basis that the deliberations of the jury are confidential and that evidence about them is inadmissible. That rule is subject to two narrow and rare exceptions. The first is where there are serious grounds for believing that a jury may completely have repudiated their oaths or affirmations to try the case according to the evidence. In such circumstances the court will enquire into whether that has happened. The second is that the court is entitled to enquire into the facts where a complaint is made that a jury has received and considered non-evidential material. The court at the directions hearing in the present case accepted that there may also be circumstances in which this court may enquire into allegations of jury bias.

[10]We would add that in R v Thompson the court emphasised the collective responsibility of jurors to bring any concern about a possible jury irregularity to the attention of the judge during the trial. That point has been taken up in later cases, including R v Baybasin

[2014] 1 Cr App R 19

, in which the Lord Chief Justice said at [63]:

"We therefore have little doubt that if one of the jurors during the trial falls below the standards expected of a juror, the other jurors will report that to the judge during the trial and before the verdict. That is the presumption upon which this court should act, if the complaint is first made after the taking of the verdict. Inquiries should therefore not be ordered in such cases and the finality of the verdict accepted, absent other strong and compelling evidence. To do otherwise is neither fair nor just. …"

[11]At the directions hearing in this case, the court applied those principles. It concluded that the allegations of jurors reaching premature decisions and of a juror placing improper pressure on others did not justify further investigation. That, the court said, was because "although jurors come to court with diverse views and express themselves in different ways, the jurors' collective responsibility for reaching their verdicts on the evidence, following clear directions by the trial judge, is sufficient to deal with such matters which are complained of in this case". The court did, however, decide that there should be an investigation into the issue of bias potentially arising from the allegation that a juror was said to have expressed a dislike of the applicant because of his status as that juror's local counsellor. The court therefore directed an investigation by the CCRC and required each juror to be asked the following questions: 1. Has the applicant at any time been your local councillor? 2. If so, did you mention it to any of the other jurors? If so, when and in what terms? 3. Do you believe that the applicant has ever been involved in a decision to refuse an application which you made for planning permission? 4. If so, did you mention it to any of the other jurors? If so, when and in what terms? 5. Did you have any prior knowledge or belief in relation to any matter affecting the applicant which affected your verdict in any way?

[12]The CCRC, to whom we are grateful, investigated accordingly. It questioned each of the jury and provided a report to the court which was disclosed to the parties in redacted form. The report provided no support for the first ground of appeal. On the contrary, it reported that only one juror had said that the applicant had been her local councillor: she had mentioned this to the other jurors and had expressed the view that he was a very good councillor for the area. Only one juror had previously had a planning application refused, but that was about 20 years earlier: he did not believe that the applicant had been involved in the decision, and in any event his application had ultimately been granted. All 12 jurors had replied "No" when asked whether they had received any information about the applicant, other than that which they heard during the trial, which affected their verdict.

[13]In short, the situation in this case is that the juror who wrote the note after the trial had concluded had raised no matter of concern with the judge during the trial; and the CCRC investigation provided nothing to support any allegation of bias on the part of any juror.

[14]The applicant's counsel thereafter withdrew from the case. A further directions hearing was held, at which the applicant represented himself. He informed the court that he wished to "change the paradigm by changing the results of the investigation carried out by the CCRC". He was allowed time to indicate in writing which, if any, grounds of appeal he wished to pursue and to provide more detail about any submissions he wished to make in relation to ground 1.

[15]The applicant has confirmed that he seeks only to pursue the first of the grounds of appeal which were settled by counsel, namely that relating to the juror's post-trial note. It is for that reason that we have felt it unnecessary to go into the facts of the case, or to say any more about the other grounds of appeal.

[16]The applicant has helpfully provided written submissions, which have been developed orally before us this morning. From these it has become clear that his somewhat gnomic reference to "changing the paradigm" meant that he wants a further investigation to be carried out, on the ground that the CCRC investigation was not sufficiently thorough due to "the limiting nature of the parameters set for it by the court". The applicant asserts that his role in politics gave rise to a potential for political bias against him. He makes a series of complaints about the terms of the questions which were asked, the failure to carry out further investigations in response to the answers given, and the fact that the jurors were not required to answer the questions on oath. He concludes that the scope and depth of the investigation so far undertaken were not sufficient to uncover the true facts behind the juror's note, and he asks for further investigations to be undertaken. In particular, he submits that it would be a straightforward and proportionate step for the court to require the answers given to the CCRC by the jurors to be cross-checked against records of planning applications and the electoral roll.

[17]In response, Mr Tucker, on behalf of the respondent, refers in his written and oral submissions to the directions which were given to the jury at trial as to the need to report any irregularity to the judge during the trial. He points out that the author of the note made no such report. He submits that the CCRC report provides no basis for rebutting the presumption as to the finality of a jury's verdicts. Mr Tucker puts forwards reasons for opposing each of the applicant's points, observing that those relating to the venue of the trial and the applicant's local prominence were matters which could have been raised when the jury were being empanelled. Overall, Mr Tucker submits that the further investigations which the applicant seeks would be speculative and disproportionate. Had they been requested at the outset of the trial, he suggests, the request would undoubtedly been refused by the trial judge.

[18]Before directing the CCRC investigation as it did, the court considered submissions from both sides. It made its decision as to the appropriate scope of a CCRC inquiry, and it is too late now for the applicant to make further submissions in support of a wider inquiry. In any event, we see no reason to depart from the earlier decision of the court as to which aspects of the juror's note should or should not be investigated.

[19]Before the court directed the investigation, the parties also had the opportunity to make representations as to the terms of the questions which should be asked. The applicant cannot now complain about the questions which the court did direct to be asked merely because he does not like the answers which they received. Again, there is in any event no good reason for suggesting that the questions asked were insufficient in the circumstances of this case. It would not have been appropriate for the court to direct the CCRC to proceed on the basis that jurors' answers to the questions should be treated as suspicious and should therefore be subjected to an ever widening process of investigation.

[20]The directing of an investigation by the CCRC into a suggested jury irregularity raised for the first time after verdicts have been returned is an exceptional step, rarely taken. Having regard to the terms of section 23A of the 1968 Act, we are prepared to accept for present purposes, though without deciding, that this court would have the power to direct a further investigation if a CCRC investigation, carried out in faithful compliance with a direction of the court, had failed sufficiently to assist the court on a matter relevant to the determination of an appeal. But even if that power exists, it would surely only be exercised in wholly exceptional circumstances. There is nothing in the present case which comes anywhere near providing a good reason for directing a further inquiry.

[21]We conclude, therefore, that further investigation is unjustified and unnecessary. We refuse the applicant's request that a further investigation be directed.

[22]The applicant has accepted in the course of his oral submissions that what is now his only ground of appeal cannot succeed on the basis of the CCRC's report. There is, therefore, no arguable basis on which his convictions can be said to be unsafe.

[23]The application for leave to appeal against conviction accordingly fails and is refused. ________________________________ 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 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________