R v Ashley Boyce [2026] EWCA Crim 693

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[2026] EWCA Crim 693

Venue Royal Courts of Justice

Strand

London

WC2A 2LL

Date Thursday 14 May 2026

Before

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

(Lord Justice Edis)

MR JUSTICE CAVANAGH

MR JUSTICE EYRE

Between

REXCrown

Between

ASHLEY BOYCE

(The Sexual Offences (Amendment) Act 1992 applies.)

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

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

_________

MR JASON CROSS appeared for Appellant

MR PAUL EVANS appeared for Crown

_________

JUDGMENT

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

[2]This is an appeal against conviction following the grant of leave to appeal on certain grounds by the full court on 19 February 2026. The full court also granted an extension of time for the filing of the Appellant's Notice.

[3]On 18 August 2023 at Snaresbrook Crown Court, following a trial before Her Honour Judge Kamill and a jury, the Appellant was convicted of one count of rape, three counts of causing a person to engage in sexual activity without consent, one count of assault occasioning actual bodily harm, one count of possessing a prohibited air weapon, one count of possessing a firearm with intent to cause fear of violence, one count of threats to kill, and one count of controlling a child aged 13-17 who was subject to sexual exploitation. He was acquitted of two further counts: one of false imprisonment and one of causing a person to engage in sexual activity without consent. The jury could not agree on three further counts of rape, and these were ordered to lie on the file.

[4]On 8 December 2023, the Appellant was sentenced to an extended sentence of 23 years for the rape, comprising a custodial term of 18 years and an extension period of 5 years. Concurrent sentences were imposed for the other offences. Ancillary orders were made which it is not necessary to set out here.

[5]A co-defendant, Victoria Bailey, was found guilty of arranging or facilitating sexual exploitation of a child, contrary to section 50 of the Sexual Offences Act 2003, and was sentenced to 2 years' imprisonment, suspended for 24 months.

[6]Leave to appeal was granted for two grounds of appeal. They are both concerned with the way in which the trial judge dealt with concerns that were raised about friction between jury members.

[7]Ground 1 is that “the judge misdirected herself on how she ought to have dealt with a serious jury irregularity, involving a serious altercation between certain jurors during deliberations, and withholding a jury note of those events, which she later claimed led her to the conclusion that the jury was unable to function.”

[8]Ground 2 is that the judge fell into error in her earlier refusal to direct an appropriate investigation, following disclosure of a note from the clerk and usher reporting an earlier incident at the same time, due to ‘a lack of time’.

[9]The Appellant's leading counsel, Mr Cross, was asked to particularise the failures of

the judge in relation to the jury issues and responded as follows:

"Further and better particulars of the learned judge's failures by reference to CPR (2023) 8.7, the learned judge: Step 1 Failed to consider properly or at all isolating the jurors concerned from the rest of the jury, 8.7.6 Step 2 Failed to properly consult with counsel, let alone invite submissions on 'how to go about establishing the basic facts of the jury irregularity (Step 4)', 8.7.7 Step 3 Failed to consider her obligation to 'consider appropriate provisional measures' such as making any enquiry of the court staff who witnessed at least some of the irregularity, as suggested by the Bar in the agreed terms set out in the attached document: 'Jury Issues Questions for Clerk', 8.7.11 Step 4 Failed to 'seek to establish the basic facts of the jury irregularity for the purpose of determining how to proceed in relation to the conduct of the trial', 8.7.14 Step 5 Failed to consider the obligation on her to 'further consult' with the advocates and 'invite further submissions about how to proceed in relation to the conduct of the trial and what should be said to the jury', 8.7.16 Step 6 It is respectfully submitted that it follows from the failures to properly follow Steps 1 to 5 that the learned judge: 1. Failed to consider properly or at all whether there was a real possibility that the jury or any of them would be biased 8.7.19, and 2. Failed to properly consider the extent to which it remained possible for the defendant to receive a fair trial and or the necessity for any safeguards to ensure the same in accordance with 8.7.20. However, whilst Counsel were informed that the irregularity continued (and perhaps into the next day, 18 August 2023) no notes were provided by the court staff and, as set out in the Advice, the Court declined to disclose the jury note regarding the same."

[10]The full Court refused leave to appeal in relation to three other grounds put forward by the appellant. These were:(1) that the judge was wrong to permit full details of the appellant's previous convictions to go before the court as bad character evidence in relation to propensity’

(2) that the judge was wrong to permit the jury to return a verdict on the count of controlling a child aged 13-17 who was subject to sexual exploitation as this was an alternative to other counts and should only have been considered if the appellant was acquitted of those other counts; and

(3) that the judge placed undue pressure on the appellant's co-defendant to reconsider the decision to sack her counsel. This was potentially relevant to the appellant's case because the co-defendant, Ms Bailey, had given evidence which supported the prosecution case against the appellant and an issue had arisen as regards whether she wished to dismiss her counsel and to retract this evidence. The trial

[11]In light of the nature of the remaining grounds of appeal, it is not necessary to provide a detailed review of the nature of the case against the appellant or about the evidence in the case. In short, the prosecution case was that the appellant had lured a girl aged 17 (C1) into the home address of Ms Bailey in Romford and had kept her there against her will, then drugged her with MDMA and cocaine, raped her, forced her to perform sexual services on various men, threatened her with violence and a firearm, and assaulted her. The defendants were alleged to have taken C1 and another girl, C2 (aged 15) to Primark to obtain clothing which was to be used in their scheme to offer C1 as a sex worker. The rape of which the appellant was convicted was alleged to have taken place on the communal landing of the housing block where Ms Bailey lived.

[12]The complainants each gave evidence. The defendants challenged this evidence and they were cross-examined. Both of the defendants gave evidence at trial. Their case was that the complainants had concocted the allegations to cover up the fact that they had been taking drugs and, in C1's case, dealt drugs. The Appellant said that C1 and C2 had stayed with Ms Bailey voluntarily, having claimed to be homeless. The Appellant denied that he had sex with C1 or had forced her to perform any sexual services on anyone else. He denied that he had threatened or used violence towards the complainants or that they had been prevented from leaving the property.

[13]Ms Bailey gave evidence that was adverse to the appellant, in that she claimed that she had seen him attack C1 in the way described by her and that C2 had told her that the appellant had asked her for sex. The jury issues

[14]The trial lasted for approximately 3½ weeks. The summing-up on the facts commenced at 11.17 am on Wednesday 16 August 2023. At 3.15 pm, the jury retired to consider its verdicts. Within about half-an-hour, the judge was told by court staff that there had been an altercation between jury members and that the jury had indicated that they wanted to go home for that evening. At 3.50 pm the jury was returned to court in order to be sent home for the night. The judge told the jury:

"Members of the jury, I gather that you would rather go home than continue this afternoon. ... it is nearly the end of the day and you have had quite a lot to listen to. Do not forget, please, you have as long as you need. Your discussions are entirely private. Your deliberations are entirely private. If you have concerns or you have questions, do not forget just to write a note and we can deal with anything."

[15]No jury note was received on the afternoon of 16 August 2023, but the judge was provided with notes from the jury bailiffs, who were the usher, Mr Terry Doherty, and the court clerk, Ms Kareema Dhuny.

[16]The jury bailiff’s note said:

"Dear Judge, Shortly after the jury went out to deliberate while I was sitting in court, I heard a constant ringing of the jury bell. I entered the jury room to find some of the jurors having an altercation with one another, one of them was rather agitated. I took this juror out and took him into a side room to calm down and told the rest of the jurors to stop deliberating. I then informed the clerk of the situation. The clerk in my attendance spoke to the juror that had been isolated as their role as a serving juror. She then took the juror back to the main room and spoke to everyone in my presence about their role as a juror. I also mentioned to the jury that if there are any further issues to write a note. After this, they asked to go home and start tomorrow as fresh."

The court clerk's note said:

"Dear Judge, As you are aware this afternoon, there was an altercation between 3 jurors when they were out deliberating. Terry the usher brought to my attention that a member of the jury was arguing with another juror which he had to step in and took that member of the jury out of the room and put him in a side room to calm down. When I went into the main deliberation room, I asked the members to stop deliberating and asked them what has [been] happening. One of the jurors explained to me what has happened, and I told them not to deliberate as there are only 11 of them. I then spoke to the juror who was in the side room with the usher, and he explained to me that he was being provoked by the others. I explained to him that he is here to do his civic duty and I am taking him back to the room and will speak to them as a group. I explained to them all that they are here to reach verdicts for the trial, and this needs to be conducted professionally and reminded them that this is their civic duty. This was all said in the presence of the usher. They then asked to go home for the day as they wanted to start fresh for tomorrow morning."

[17]On the following morning, Thursday 17 August 2023, before the jury came into court, the judge disclosed the contents of the notes from the jury bailiff and court clerk to counsel. Prosecuting counsel, Mr Paul Evans, observed that it was likely that the jury had had a long and tiring day the day before, but he invited the judge to ask the jury to retire and carry on with their deliberations, on the basis that the court could then see what develops as between the jury and the conclusions that they reached in relation to the verdict. For the Appellant, his junior counsel, Mr Payne, agreed with this approach. He said that the juryare plainly here to exchange views and sometimes that is in a robust way. He pointed out that (so far as he was aware) the jury had not sent a note, either the preceding afternoon or that morning. Counsel for Ms Bailey, Ms Tayo, at first agreed that the jury should be sent out to continue with their deliberations, on the basis that things may have calmed down.

[18]However, in the next few minutes whilst the court was waiting for the jury to come into court, counsel checked the relevant passage in Archbold, paragraph 4-309, and jointly prepared some questions which they asked the judge to put to the jury. These were:

"1. When you were present in the jury room/side room, can you tell us what you heard and saw without disclosing anything said by any of the jury in respect of their deliberations? 2. If so, please tell us what you have heard and/or saw. 3. If not, are you able to characterise the nature of the dispute?"

[19]The judge declined to ask these questions of the jury. She informed counsel that she had received a note from a juror that morning, though she did not immediately read the note out. This note said:

"I am not happy about how one of the jurors spoke to me. He was interrupting everyone during the deliberation and I said, ‘wait we need to go round the circle’. He kept asking if he can talk when I had no issue with him. He then went on to call me a ‘cunt’ and threatened to ‘rip my gob out’. Today I felt very uncomfortable to come in. He has had another argument before with another juror and started to shout and yell at him. It’s a matter of him threatening to rip my gob out which makes me feel uncomfortable."

[20]The judge said that the problem with the jury, so far as she understood, was about character, a clash of character, rather than about the trial itself. She said that she would not make further enquiries of the staff, and that what she proposed to do, in accordance with the guidance in the Crown Court Compendium, was to tell them to respect each other's opinion, and then, if there was any further trouble, the court would deal with it. The judge said that the jury was made up of every race, religion, sex, age and everything and sometimes people do not get on.

[21]Counsel did not press any further the proposal that the jury be asked questions.

[22]At 11.01 am, the jury was brought back into court and

the judge addressed the following remarks to them:

"Thank you for your note. Now, members of the jury, I am going to ask you to continue your deliberations but can I just say a few things, just before we do that? [We are] conducting a trial, two people have been on trial for almost four weeks and it is tough on everybody. As to the court staff, after the long tiring day yesterday, they took their oaths, as you know, and they should have only asked you if you have reached your verdicts. That is what the oath says. However, when you rang the bell, … they found a situation that needed to be dealt with. I may say that I applaud their quick thinking in telling you stop deliberating, in other words, stop considering the matter that you are dealing with, the moment that they entered the jury room and that is exactly what we expect of our staff. Now, as far as you are concerned, it is entirely understandable that, after two long days of speeches and summing-up, the tiredness, and all that entails must have, may have overtaken your good sense and decorum. Juries, over the years, have had to work together. Sometimes they get fond of each other and sometimes they get cross and bawl out. But we in court who are dealing with the trial, we never know. We just do not know what happens in jury rooms. We just hear verdicts or should just hear verdicts. What I am asking you to do is to concentrate please on the matter in hand and to work together, however it be, whether it be in cross exchanges or fond exchanges, I do not know, to come to your verdicts. Now, there are some general guidelines that I can give you for deliberating. Respect each other’s opinions and value the different viewpoints you each bring to the case. Be fair. Give everyone a chance to speak. I should say, it is okay to change your mind. Listen to each other. Do not let yourself be pressured into changing your opinion and do not pressure anyone else. Please do not rush to save time. The people in this court deserve your complete attention and thoughtful consideration. You follow what I have asked, all those questions at the end which need answering, and of course you will not make your own enquiries. But what I may say, above all, is keep calm and listen to each other. Get somebody to organise it so that you can each have a turn. There are no rules, these are just suggestions. Sometimes it is one by one, sometimes it is taking votes, sometimes it is drawing on a white board. Who knows? The truth is, we just do not know how juries operate and we have no idea how you are going to operate. But please, members of the jury, keep calm and remember why you are here. This is a court of law, people are on trial, and we ask you to just do your best within the jury room. I know what one of your number is very concerned about and I am sure that you will be able to get above it, step above it. Name calling does not assist. Anyway, having said all of that, I am now going to ask our Bailiffs to allow you to go into your deliberations."

[23]The jury then retired to continue its deliberations. At that point, the judge told counsel the gist of the jury note, namely that one of the jurors had been called a number of names by one of the other jurors and really unpleasant names, and the juror had written to the judge to say how uncomfortable it had made her. The judge said that they would just have to see if it continues. Counsel did not make any further submissions at that stage.

[24]At 3.39 pm on 17 August 2023, the jury returned with verdicts on some of the counts. These were unanimous. They found the appellant guilty on Count 5, Count 8, Count 9, Count 11, Count 12 and Count 13. Counts 5, 8 and 9 were counts of causing a person to engage in sexual activity without consent; Count 11 was a count of assault occasioning actual bodily harm; Count 12 was a count of possessing a prohibited firearm; and Count 13 was a count of possessing a firearm with intent to cause fear of violence.

[25]The jury was then sent out to continue deliberating on the remaining counts. During the course of the day, the judge received jury notes which were not about friction amongst the jurors. One note mentioned that a juror had an appointment the following day and one queried whether the jury would be required to sit the following week. The judge discussed these notes with counsel.

[26]The court adjourned at 3.54 pm and resumed at 4.39 pm. In the meantime, the judge received two notes from the jury. One note pointed out that the judge's legal directions did not include any directions on Count 14. The other note was from the same juror who had sent a note in the morning. It was timed at 4.45 pm, but this timing must be incorrect as the court resumed to deal with it at 4.39 pm. The note, which was signed, said:

"Your honour, The same juror that threatened me yesterday has done the same today. I told Terry (usher) that if this juror cannot make tomorrow, please do not change my appointments."

A few words cannot be read from the note, and then the note continues:

"Juror #3 has threatened to beat me up outside of court and said ‘I have had a bad upbringing.’ His specific words were ‘in here is in here, but outside the court is outside the court’. He also said he will spank me."

[27]The judge called counsel into court in the absence of the jury. She said:

"…within the jury, one person is causing a disruption. I have had two notes in relation to disruption and I think the only way that we can make any progress at all is by me discharging that particular person. I do not think I can calm it down. I do not think the jury will be able to reach verdicts with that person within the jury. Therefore, I am going to have to discharge that person from further service. Now, I understand that everybody would prefer a full jury but we are not going to make any further progress with that person within the jury. Therefore, I am going to take a step which is to discharge that person."

[28]Ms Tayo, counsel for Ms Bailey, invited the judge to refer to the section in Archbold that she had referred to that morning, at paragraph 4-309. The judge read it and said that the position was that the jury would work without this person but will not work with this person and so she was going to discharge the juror.

[29]Mr Payne made submissions on behalf of the Appellant, in the absence of Mr Cross. He said that they were concerned that what was proposed by the judge appeared initially to be an attractive proposition, but that where a dispute arises because of different views the jury have of the evidence, it would be an undesirable and maybe even an incorrect approach to discharge a person with a minority view in order to achieve a collective agreement.

[30]The judge said that she did not believe that this was the situation facing the court. Rather, it was "entirely personality".

[31]Mr Payne then said:

"Yes. And I think the issue – I am not – I do not even necessarily argue against Your Honour but what we would invite you to do is to allow the jury to go home and to address it tomorrow morning. The reason is, what Archbold asks for in this passage is [rather] than a simple solution, an enquiry to ascertain that really that is the issue, it is not, as it were, a disagreement of fact or different views on the case itself. And that the jury really are – the test is whether the inference can be drawn whether the jury are not able to perform their duty. It says, the whole jury should be questioned in open court as to their capacity as a body to continue. The difficulty is, in Archbold the Court of Appeal digest is it involves the questioning of the entirety of the jury, not simply the suspected one individual who is a problem."

The judge intervened at that stage to say that she thought she was doing that. Mr Payne said that he would benefit from a little more time, but the judge said that it was now 4.45 pm and she was not going to continue with the situation.

[32]The jury was brought back into court at 4.46 pm.

The judge said the following to the jury:

"Members of the jury, I'm sorry that it is so late. I have had various notes from you and I understand that there have been some real difficulties with your deliberations. That, rather than deliberations it is personalities and clashes of character and personality within the jury. Now, I want to know if it be that you are able to work as a body and to continue as a body. But, if it would be that it would assist you to deliberate and find verdicts in a smaller number, say of 11 rather than 12, I would like to know. It may be that the clash would be cured if one of your number were released, discharged from returning further verdicts. I can see some nods, quite a lot of nods. I am conscious that I do have the power to discharge one of your number if it assists. I suspect that the person I need to discharge is juror number 3. If that will assist you, I am prepared to do it. If it be that you are able then to continue, I am just wondering if you would be kind enough to consider that as a future movement and would let me know. All right. Thank you. Let us just let the jury go down please. Right, I do not want you to speak in here, that is all."

[33]The jury were then sent out of court to have a discussion. For the Appellant, Mr Payne then expressed his objections to the course of action that the judge had taken. He said:

"This is a highly irregular scenario and the approach Your Honour has taken, it is a matter for you, is not in keeping, it is a matter for you, is not in keeping with the authorities,which say that the jury should be questioned in open court as to their capacity as a body to continue. And it seeks the court exploring circumstances that they advise in such a situation in order to distinguish things that are internal to their deliberation and those that are not. This is a position where the jury have returned a series of verdicts unanimously, so coming to a conclusion, at this stage, that they are unable to function would be rather contrary to the verdicts that have been returned while this state of affairs did exist… At the moment there is, in my submission, rather a rush here on something that is fundamental to the progress of this trial. The Defence would ask for time to take stock."

[34]The judge said that she would give counsel the opportunity to read the most recent jury note and said that counsel could tell her their position the following morning. Though the transcript does not record that the two letters from the juror complaining about Juror 3 were read by the judge to counsel, it is clear from the Respondent's Notice that they were shown the notes and that it must have happened at some point during the late afternoon of 17 August 2023. Mr Evans, who was counsel for the Prosecution, recalls that the contents of the note were disclosed to counsel, and this is corroborated by the fact that his contemporaneous trial note contains a note of their contents (including the bad language and threats from juror number 3).

[35]The jury bailiff then came into court and said that he had spoken to the jury and they wanted the relevant juror, Juror 3, dismissed because he was causing problems. The jury bailiff said that that this was the collective view of the remaining eleven jurors and that he would tell them to put it in writing.

[36]At this point Ms Tayo, counsel for Ms Bailey, interjected to invite the judge to look at Archbold, paragraph 4-308, which sets out the step-by-step process to be used where there are jury irregularities. The judge observed that one of the steps was to consider appropriate provisional measures but there was no time to do that.

[37]The jury then wrote a note to

the judge dated 4.55 pm, which said:

"We as a jury have decided all 11 feel that we can deliberate in a much more safe and secure environment without juror number 3."

It is not clear from the court transcript whether this note was shown to counsel.

[38]The judge re-called the jury into court at about 4.55 pm. She said:

"Now, I have received a note which indicates that 11 of you have decided that you can deliberate in a safe and secure environment without juror number 3. I have had other messages about juror number 3. In the circumstances, I intend to discharge you from further service on this jury and from returning verdicts in this case. Thank you for your attendance up until now. So, you can leave please."

That last passage was plainly directed at juror number 3.

[39]The following morning, Friday 18 August 2023, the judge gave directions to the jury on Count 14 (threats to kill), which had been inadvertently omitted when the legal directions were originally given. The jury then retired to continue its deliberations. At 11.59 the jury sent a question about an aspect of the evidence related to Count 14. The judge dealt with it after consulting with counsel.

[40]At 12.03 pm the jury returned a further verdict of guilty on count 3, rape, and the judge then dealt with the question about Count14. At 12.24 the jury returned a verdict of guilty on Count 14, threats to kill. At 2.12 pm, the jury returned a verdict of not guilty on Count 2, not guilty on Count 10 and guilty on Count

15. The jury also sent a note, asking for a transcript of C1's interview at the police station but were told they could not have it. The jury sent a further note, asking for clarification on an aspect of the evidence. At 3.20 pm, the jury was given a majority direction in relation to the remaining counts concerning the appellant and a count relating to Ms Bailey. At 3.38 pm, the jury found Ms Bailey guilty, by a 10-1 majority, but had not reached agreement on the remaining three counts against the appellant, Counts 4, 6 and 7. The foreperson of the jury was asked if there was any prospect of verdicts being obtained in relation to those counts and indicated that there was none. The judge therefore discharged the jury from returning verdicts in relation to those remaining counts. Submissions on behalf of the Appellant

[41]The essence of the grounds relied upon by the Appellant is that the Appellant's conviction was unsafe because the judge did not properly follow the steps set out in the Crim PD 8.7 which are designed to ensure that verdicts are not tainted by unfairness as a result of jury irregularities. In particular it was submitted that:(1) The judge failed sufficiently to establish the basic facts by making appropriate enquiries of the jury and in particular by asking questions of the jury that were jointly proposed by counsel and/or by obtaining further notes from court staff;

(2) The judge did not sufficiently consult with counsel or provide them with the notes;

(3) After the problem first arose, she should have isolated the jurors concerned; and

(4) She should have adjourned overnight on 17 August 2023 rather than deciding there and then to discharge juror number 3.

[42]It was submitted that as a result of these errors and the cumulative effect of them, the judge failed properly to consider whether any further step should have been taken in relation to the jury to safeguard the integrity of their deliberations and/or failed properly to consider whether the jury's deliberations should be stopped because there was an unacceptable risk that the jury might be biased or that the defendants could not receive a fair trial. The Criminal Practice Directions and relevant case law

[43]Crim PD 8.7 deals with jury irregularities.

[44]Paragraph 8.7.1 states that "A jury irregularity is anything that may prevent one or more jurors from remaining faithful to their oath or affirmation".

[45]Paragraph 8.7.3 states that "The primary concern of the judge should be the impact on the trial".

[46]Paragraph 8.7.4 states that "A jury irregularity should be drawn to the attention of the judge in the absence of the jury as soon as it becomes known. The judge should obtain, where possible, a written record of the matter that has been raised."

[47]Paragraph 8.7.5 summarises the procedure that a judge must follow when she or he becomes aware of a jury irregularity. These are: STEP 1: Consider isolating juror(s) STEP 2: Consult with advocates STEP 3: Consider appropriate provisional measures STEP 4: Seek to establish basic facts of jury irregularity STEP 5: Further consult with advocates STEP 6: Decide what to do in relation to conduct of trial STEP 7: Consider ancillary matters (contempt in face of court and/or commission of criminal offence).

[48]Further detailed guidance is provided in paragraphs 8.7.6 - 8.7.35.

[49]So far as Step 1 is concerned, paragraph 8.7.6 states that the judge must consider, where two or more jurors are concerned, whether they should also be isolated from each other, particularly if one juror has made an accusation against another.

[50]As for Step 4, paragraph 8.7.14 states that the judge’s enquiries may involve having the juror(s) concerned write a note of explanation and/or questioning the juror in the absence of the other jurors unless there is a good reason not to do so. The judge may enquire whether the juror(s) feel able to continue and remain faithful to their oath or affirmation. However, where there are circumstances internal to the jury, such as friction between members, the whole of the jury should be questioned in open court as to their capacity to continue.

[51]Following these investigations, paragraph 8.7.16 states that the judge should further consult with counsel.

[52]As for Step 6, paragraph 8.7.20 states that there are three options open to the judge: the first is to take no action and to continue with the trial; the second is to discharge the juror concerned; and the third is to discharge the entire jury. Whichever course of action is taken, the judge must consider what if anything to say to the jury.

[53]The authorities make clear that the trial judge has a discretion regarding how to proceed in the face of a potential jury irregularity. However, in a recent judgment of this Court in Shawn Runakl Delecia

[2026] EWCA Crim 42

at [37] the Court said:

"We understand the term ‘discretion’ used in this context, as in many others, not to mean that the trial judge has an open choice according to his own inclination, but to mean that the trial judge must exercise care and judgment in his or her decision, and is best placed to do so."

[54]The nature of the potential jury irregularity and the manner in which it may come to light will differ from case to case, and so the way that a judge should proceed whilst remaining true to the requirements of Part 8.7 of the Crim PD will be case-specific. In KK

[2019] EWCA Crim 1634

, this Court said, at [31]:

"Crim PD 8.7 is an essential tool for the judge faced with a possible jury irregularity, assisting good decision making. However it is to be understood as providing structure and guidance for the court's approach, not a straitjacket on decisions."

[55]At paragraphs [80] and [81] of KK, the Court said:

"80. It is at all events to be noted that, whilst the Practice Direction specifies the seven steps which are to be followed when a jury irregularity is revealed, the Practice Direction is relatively open-ended as to the way in which the judge goes through those steps. Thus the language frequently is directed at what the judge should ‘consider’ or what the judge ‘may’ do. The language thus is – consistently with previously decided authorities – geared towards discretion rather than prescription. 81. This is as it should be. The Practice Direction is aimed at jury irregularities in general terms. But, whilst the seven steps are ordinarily to be followed in each case, how best to follow them must necessarily depend on the facts and circumstances of each case. Moreover, the very nature of the irregularity in each case, and the stage at which it occurs, will necessarily impact on the judge’s consideration of what to do by reference to each step and on his decision at each step and on his ultimate conclusion. Thus, a different appraisal may follow depending on whether, for instance, there is a suggestion of jury intimidation or tampering or whether there is a suggestion of internal friction or bullying or whether more than one juror is involved in the irregularity: and so on. In short, therefore, the judge, whilst required to have regard to the Practice Direction, has a discretion as to what best to do, a discretion which is to be exercised by reference to the facts and circumstances of the individual case: provided always that prime regard throughout is had as to the impact of the irregularity on the fairness of the trial."

Discussion

[56]Though there are two grounds of appeal, they are closely interrelated and can be considered together.

[57]The possibility that there might be difficulties with the jury's deliberations first came to light in the late afternoon of 16 August 2023, not long after the jury had retired to consider its verdicts. At that stage, as soon as it became clear to the jury bailiff that an altercation was taking place, he isolated the juror who appeared to be at the heart of it and then told the jurors to stop deliberating. The judge immediately sent the jurors home. As they were separating for the night, there was no need to consider isolating anyone else. She obtained written statements from the jury bailiffs. She then raised the matter with counsel first thing the next morning and informed them what the jury bailiffs had said. This was wholly in accordance with Steps 1-4 of Crim PD 8.7.

[58]The following morning, after consulting with counsel, the judge decided that the best course of action was to give guidance to the jury in open court about continuing its deliberations in a positive and co-operative manner whilst avoiding friction and then to send out the jury to continue its deliberations. In our judgment this was well within the scope of the judge's discretion and was consistent with the spirit and the letter of Crim PD 8.7. It is true that by this stage the judge had received the note from the juror who complained that juror number 3 had been abusive to her and had threatened her with violence. It is also true that all counsel had invited her to ask questions of the jurors before going any further. However, the judge was not bound to accept the submissions of counsel, and it was open to her to decide that the note from the jury bailiffs and the single juror was sufficient to establish the basic facts, and it was also open to her to decide that the best course of action was to invite the jury to continue with their deliberations in the hope that the jurors had cooled off overnight and that each of the jurors would take on board the guidance she had given about deliberating in a positive and cooperative manner. The case was a serious one and had lasted several weeks. The complainants were young and vulnerable, and the judge was no doubt keen to keep a full complement of jury members for as long as possible, and to avoid a situation in which the jury had to be discharged, if at all possible. There was still a real chance that the difficulties that had been encountered the day before would evaporate. Significantly, there had been no allegation of jury bias and no suggestion that the altercation arose because one or more of the jurors was failing in their duty to consider the evidence in an appropriate manner. It might have been better if the judge had read the exact text of the juror's note to counsel before she gave guidance to the jurors and sent them out to continue their deliberations, but she had given them the gist of its contents and counsel were in a position to make submissions about the best way to proceed. She gave more detailed information about the contents of the note immediately after the jury left court.

[59]We do not accept that the judge rushed the matter inappropriately on the late afternoon of 17 August 2023. She made enquiries of the jury and received a clear response that the jury felt that it could deliberate in a much more safe and secure environment without juror number 3 before she discharged that juror.

[60]Whilst the judge did not refer specifically at any stage to Crim PR r.8.7, she did refer to the guidance in the Crown Court Compendium and said that she proposed to follow it. It is clear from the context that this was a reference to the part of the Compendium which deals with jury irregularities and which makes clear that judges should follow Crim PR r.8.7. She was also referred specifically to the part of Archbold which sets out Crim PR r.8.7.

[61]In the event, the jury was, later that day, then able to return unanimous verdicts on six counts against the appellant. Not long afterwards however, the judge received a second note from the juror who had complained about juror 3 the day before. She said that this behaviour had continued in the same manner, and the juror had threatened to beat her up outside court. The judge consulted with counsel. It appears that the judge, who was very experienced, had already reached a preliminary view that she had to discharge juror number 3, but she nonetheless consulted with and took account of the views of counsel. No question of isolating the juror arose because the judge intended to act immediately by discharging him. The judge complied with Step 4 by calling the jury into court and by asking the jury to state whether they felt able to proceed as a jury of twelve. The jury bailiff then passed on the message that the jury wanted juror number 3 to be discharged, and this was followed up by a jury note which said that the jury wanted this to happen so that the jury could deliberate in a much more safe and secure environment. It was clear therefore that the reason for the friction amongst the jurors was that one juror was behaving in a way that was threatening to the other jurors. It was also clear from the jury's response to the observations of the judge in open court that the issue was not simply disagreements about the facts or about the verdicts but was the result of a clash of personalities. In our judgment the judge was plainly right to discharge juror number 3 rather than to discharge the whole jury, given that there was no reason to think that the problem was anything more than inappropriate and threatening conduct on the part of one juror. There was no suggestion of bias or that the jurors had fallen out because they had different views about the case. This was borne out by the fact that the jury had been able to return unanimous verdicts on five counts despite the friction. It was also borne out by the fact that the friction with juror 3 started within a very few minutes of the jury retirement. Given the length of the trial, it would not have been in the interests of the defendants or the complainants to discharge the jury altogether, thereby necessitating a retrial. It was not a realistic option to continue with a twelve-member jury including juror 3. As we have said, we do not consider that the judge rushed her decision in any improper way.

[62]For these reasons, we conclude that the way in which the judge dealt with friction amongst the jurors did not render the appellant's convictions unsafe. For these reasons, the appeal is dismissed. 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